As a matter of FAQ

Since the start of the year Arts Law has given advice to nearly 2500 Australian artists. These enquiries have covered a broad range of legal issues from debt to defamation, copyright to commercial leases and we thought it would be worth looking back at some of this year’s FAQs. Rather than giving our answers we decided it would be interesting to put the FAQs to some of the lawyers who have generously volunteered their time to Arts Law in 2004 and without whose assistance we would not be able to continue to provide the services we do.

Please note the answers to these questions cover only the basic information and are provided as general information only and should not be taken as legal advice. If you have a specific legal issue you should contact Arts Law to discuss.

 

How do I get copyright?

All you have to do is express yourself in some material form. Crayon on butcher’s paper, dictaphone, digital file, whatever. As soon as you get it down, copyright arises. If you are the creator, you own it. Forget about mailing it to yourself, registering it, lodging it with your solicitor, or burying it at the crossroads under a full moon. None of this is necessary.

There are a few conditions:

1. It must be your original work, from the sweat of your brow, not pinched from someone else or the public domain.

2. It must fit into one of the pigeonholes set out in the Copyright Act: literary, dramatic, musical or artistic work, published edition (the 'look' of a printed page), film, sound-recording or broadcast, (copyright doesn't protect discoveries or inventions, which are covered by patents and other specific laws).

3. It must be substantial. Single words (eg film titles) are not usually substantial enough to be protected by copyright.

4. If you are an employee, your employer might own it. If you have signed a contract, or other people have financed or assisted with the work, other parties may own some or all of it. Special rules apply to photographers, journalists, and people working for the government.

While it is a good idea to attach the © symbol as well as your name, all this does is put other people on notice. It does not affect the primary issue of copyright arising, and you don't lose copyright if you forget.

Michael Easton, Brett Oaten Solicitors, Sydney

 

Can I use images/music from the Internet in my own work?

Musical works, sound recordings and artistic works are all protected by copyright under the Copyright Act (Act). The Act gives the copyright owner in these works certain exclusive rights including to reproduce (make copies) and communicate (make available electronically).

Copyright is infringed when someone does or authorises the doing of, any of the acts comprising the exclusive rights of the copyright owner without the permission of the copyright owner, in relation to a 'substantial part' of the work. Therefore, generally, when you print, burn or reproduce material such as music or images from a website without permission, you will be infringing someone's copyright.

Accordingly, you should not assume that you are entitled to print or download music or images you access from the Internet. In some cases, you may be able to copy or download certain material if it is expressed or clearly implied that you may do so. However, if this is not the case, you will need permission from the copyright owner.

Liz Wright, Mushroom Group of Companies, Melbourne

 

My friend and I are making a film – what business structure should we have?

(This FAQ presumes some knowledge of what a partnership, proprietary company, an incorporated association and a company limited by guarantee are. If you are unsure of these concepts you will need to do some research. Here are some useful URLs www.asic.gov.au and www.fairtrading.nsw.gov.au and recommended viewing “Making Venus” Dir. Gary Doust http://us.imdb.com/title/tt0325774/).

The answer to this will depend upon various considerations some but not all of which may be relevant to your decision being:

1. How much money do we have?
2. What sort of liabilities are we going to incur when we make the Film?
3. How are we raising the money to pay for the Film?
4. Was there script development Investment in the Film?
5. What are the underlying rights in the Film and how have they been acquired?
6. Is the film being made by you both as part of a community organisation, cultural or charitable purpose?

If your film is being made with very little money, you are both writing and directing and producing, doing all the music and sound and possibly starring and crewing and you believe that the legal liabilities and risks are minimal, no money is coming from any other source and no-one is bothered whether it succeeds or fails, and you both trust each other completely not to run up debts that you cannot pay then you will find it cheapest to use a partnership structure. (Arts Law has a sample Partnership Agreement available for purchase).

If on the other hand the film will cost more money than you have to make and will expose you to liabilities in excess of your means, you have various sources of investment and funding, you have acquired rights to a script and you have development investment to repay, you would be wise to use a proprietary company.

If the film is a community, cultural or charitable project being made by a community organisation as part of its non-profit activities you may be required by its funding sources to maintain this status in the production of the film. In this case the legal structure may be a Company Limited by Guarantee or an Incorporated Association. If however you are making the film for such an organisation then a proprietary company would be suitable.

The most suitable business structure in all cases is really a proprietary company because it removes you from personal liability in the many transactions that must be entered into to make a film. If the film is a flop (and provided you did not incur any liabilities that you never reasonably believed you could repay), in the worst case scenario you can walk away from the company and leave it in administration or with the liquidator. In a partnership as individuals you may face bankruptcy. Often however the costs of incorporation and of paying an accountant to keep a company's books, records and carry out annual tax and company return and these fees are prohibitive.

If you are in the situation where you simply could not make the film if you had to incorporate then you must make a hard decision whether you are willing to take the personal risk and make the film anyway or wait until you are in a position to incorporate.

Raena Lea-Shannon, M Frankel & Co., Sydney

 

Do I need an ABN and register for GST?

Whether you need to register for an ABN (Australian Business Number) and whether you need to register for GST are two separate issues. You can obtain an ABN even if you don’t register for GST but you can’t register for GST unless you have obtained an ABN.

An ABN is an identifying number used by a business in dealing with other businesses and the Australian Tax Office.

To obtain an ABN you must be “carrying on an enterprise” and not be an employee or engaging in a hobby, recreation or activities with no reasonable expectation of profit.

If you are “carrying on an enterprise” but don’t have an ABN, other businesses will be required to withhold certain amounts from sums they pay you relating to your business.

GST registration means you will include (and account for) GST in your fees or prices.

You must register for GST if your enterprise has an “annual turnover” of $50,000 or more (or $100,000 if you are a non-profit organisation). Once you do, you will need to charge GST, issue “tax invoices”, and submit GST returns to the Tax Office.

Further information on GST/ABNs is available at www.ato.gov.au/businesses

Mike Tucak, Solicitor, Perth

 

What are moral rights?

The Australian Copyright Act recognises the following three moral rights of individual creators/authors:

• the right to be named as the author or creator of the work;
• the right not to have authorship of the work falsely attributed; and
• the right of integrity of authorship – ie the right not to have the work subjected to derogatory treatment.

Moral rights apply to a wide range of copyright works including literary, artistic, musical and dramatic works, and films. Performers will also have moral rights in their performances when amendments to the Copyright Act come into force (as at the date of writing, it is not yet known when this will be).

Moral rights are granted only to individuals. It is not possible to assign or transfer moral rights. Even when a creator has assigned all of his or her intellectual property rights (e.g copyright) in a work by contract, the author will still retain moral rights in the work. Similarly, even if the creator is an employee and his/her employer owns copyright in the work the creator will still retain moral rights.

Moral rights continue in force for as long as copyright subsists in the work (subject to some exceptions).

There are various defences to infringement of moral rights. One of these is that moral rights will not be infringed where the author has given his or her written consent in terms which comply with the Copyright Act. Generally, the consent should refer to the specific work and acts or omissions in relation to that work.

Michelle Momdjian, Freehills, Sydney

 

Someone is using my work without permission – what can I do?

Firstly clarify that it is exactly or substantially your work. When it is possible to obtain a sample of the offending work or a copy of it by lawful means, then you should do so, as a record of the alleged breach.

If you remain certain that your rights are being infringed then you must act immediately to protect those rights. You should immediately contact the other party (preferably in writing) and advise them of your concerns and outlining your copyright claim. The demand should be made of the offending party advising that the offending usage cease immediately. The demand may also include a demand to not further copy your work. The statement or demand may also need to specify that you are suffering loss, and will continue to do so for the time that the breach continues.

You should give the other party a reasonably short period of time to respond, say 7 or 14 days. If the other party does not respond then you should immediately seek assistance from an organization such as the Arts Law Centre of Australia or from a solicitor recommended by Arts Law.

The important thing is to act quickly. To delay action may affect your rights at a later time.

You also need to be certain that you are in fact protected by copyright. Copyright does not protect ideas, concepts, styles, techniques or information. The rights that you have may lie in other areas of law such as confidential information. You should also give consideration to whether the use of the infringing party may in fact be a valid or fair use. These can be a defence to a claim for breach of copyright.

The reason that some care must be taken in considering whether your copyright claim is justified arises from Section 202 of the Copyright Act. Where a threat of an action is made by a person who does not own the copyright, then damages may be claimed by the recipient of the threat.

Copyright is a valuable property. It should be treated like any other valuable asset. You should keep dated copies of materials such as manuscripts, negatives or recordings. You should also keep copies of all letters or other correspondence such as emails that you have with other people who have access to your work. Obviously any agreement about your copyright should be in writing to provide the maximum level of protection to you.

Stephen Grant, Nanscawen Grant, Melbourne

 

How can I protect my name? Is registering a business name enough?

Reputation

There is a short answer to each of those two questions. The answer to the first is “use it” and to the second it is “no”.

The law in Australia has shown little interest in protecting names unless some reputation is associated with that name. Reputation does not just attach to a name; it can be associated with a likeness or image.

Attribution

In recent years the introduction of the moral right of attribution has been important in assisting authors acquire a reputation in their name. In the Arts it is fundamental to developing a reputation that the author’s name be associated with their work.

Section 193(1) of the Copyright Act provides:
“The author of a work has a right of attribution of authorship in respect of the work.”
(See sections 193 – 195AB of the Copyright Act or contact Arts Law for more information)

Trade Practices Act and Passing Off

An author with a reputation has available to them several legal remedies to protect their name. Two provisions of the Commonwealth Trade Practices Act regulating the conduct of corporations (and corresponding provisions under the fair trading legislation of the States regulating the conduct of individuals) have proved useful –
s.52(1) – A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 53A(1)(a) – A corporation shall not, in trade or commerce, represent that the corporation has a sponsorship, approval or affiliation it does not have.

These statutory provisions are bolstered by the tort of passing off. That is carrying on business or selling goods in a way that leads people to think it is the business or goods of another.

If a corporation uses a person’s name, likeness or image for advertising purposes without the person’s consent it is likely to be a breach of these provisions, particularly if the person is well known.

Copyright, Trade Marks and Business Names

These areas of the law may provide some protection.
Most names are too short to qualify for copyright protection, so copyright offers little or no protection to names.
A trade mark may be a person’s name but to be registerable it must be capable of distinguishing a trader’s goods or services. The name “Bradman”, for example, has been registered as a trade mark by The Bradman Foundation.
Each State has legislation dealing with business names, which provides that a person must not carry on business in that State under a business name unless that name is registered. The purpose of the legislation is not the protection of names although there may be some situations where the registration of a name may have practical benefits. Benefits may also arise from the registration of a person’s name as a domain name on the Internet.

Bill Morrow, Norman Waterhouse, Adelaide

 

Can I take photos/film in public places?

Photographers and filmmakers have the same rights of access to public places as anyone else (note that certain filming activities may require permits from councils). But, if you intend to record distinctive locations, buildings, businesses, personal property or products, written releases should be secured. Clearances are not necessary where non-distinctive background use is made of these kinds of properties, or if you are photographing or filming sculptures or other works of art permanently situated in public space.

It is worth noting that while many public events, press conferences and other situations take place on private property, where the occupiers of that property encourage media attendance to record the event, just because those premises are open does not mean all media are invited to come in with their cameras and microphones. Unless the occupier’s permission has been obtained, there is a risk you could be trespassing. If you do obtain consent to enter and film but that consent is subsequently withdrawn, you will be trespassing if you fail to leave within a reasonable time of being requested to do so.

Filming and photographing private property from other premises, public areas or from the air is generally possible but in certain circumstances can amount to trespass, breach of privacy or nuisance. No trespass is committed where there is no entry onto the land or premises unless the recording includes audio recording of “private conversations”, which is an offence in most states. Filming from the air amounts to trespass where an intrusion into airspace actually interferes with the occupier’s use of the land, such as prolonged hovering in a helicopter. And, note that while reluctant to do so, courts do have the power to restrain publication of material obtained whilst trespassing.

You should also be aware that when filming, incidental recording of music playing in a location cannot automatically be included in your film without seeking permission from the owners of copyright in the sound recording, and the song embodied in that recording.

Standard location agreements are available from the Arts Law Centre.

Deborah Tobias, Hillman Laxon Tobias, Sydney