By Peter Carstairs, solicitor at the Arts Law Centre and Serena Armstrong, volunteer, at the Arts Law Centre.
Directors are often heard to refer to a film that they’ve directed as “my film”. Yet unless there is a written agreement to the contrary, or unless the director is also a producer, a director will not normally own any copyright in the film. To bring Australia into line with its international obligations, and as a result of lobbying by the Australian Screen Directors Association (ASDA), the Federal Government plans to introduce a new rights bill that includes copyright for film directors.
In Australia, the Copyright Act classifies artistic creations into two distinct categories. The first are ‘works’ including original artistic, musical, dramatic, and literary works. Copyright in ‘works’ is in general owned by the author of the work – the creator. The second group are ‘subject matter other than works’, including films, television broadcasts and sound recordings. Authorship of these is irrelevant when considering ownership of copyright in them. In fact, the owner of copyright in a film will usually be the maker of the film (defined as the person who makes the necessary arrangements for the making of the film). The courts have held that this person is generally the producer or production company.
Directors, however, have long argued that a film is an original artistic work and that the pre-eminent creative force in its making is the director; and that copyright, in a sense, protects the ‘investment’ of a producer, rather than the work of an author. Currently scriptwriters and screen composers receive copyright protection for their works, which are used in the film, but the same is not true for directors.
A work in progress
The ASDA submission to the Attorney General’s Department on a proposed directors’ copyright set out the approaches adopted by France and the United Kingdom – two current models which recognise directors’ copyright.
The copyright law in France states that ‘the author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive incorporeal property right which shall be enforceable against all persons’. Audiovisual works are included as ‘works of the mind’. Unless there is contrary proof, the co-authors of a work will be: the writer of the script, the writer of the adaptation, the writer of the dialogue, the author of the musical compositions specifically written for the work, and the director.
The UK model is useful to look at because its legal system more closely reflects Australia’s. In 1996, in line with an EU directive, the UK introduced co-authorship for directors and producers. The UK Copyright Act now says that the producer and principal director are deemed to be the ‘joint authors’ of a film. The Act also uses the term ‘work’ to describe all things protected by copyright, including films.
In response to the call for submissions, ASDA proposed a model more consistent with French copyright law. Richard Harris, ASDA’s executive director, sees it as ‘important that the model provides producers and financiers with financial certainty but also has built in a mechanism for providing directors with a share of secondary income at the back end. In fact, such a model could also be adopted by other key creatives, such as writers, who also don’t seem to receive a share in secondary income.’
The main elements of ASDA’s model can be summarised as follows:
- A film would be defined as a ‘work’ rather than ‘subject matter other than work’;
- The principal director would be deemed an author of a film;
- Where there is a principal director, the primary economic rights in a film would be first co-owned by the director and the producer;
- The primary economic rights would be presumed to transfer to the producer, unless otherwise stipulated in a contract;
- The director would have a ‘non-transferable’ right to receive equitable remuneration for secondary rights (including re-transmission, educational copying and blank tape levies);
- If there is no principal director credited for the making of the film, all copyright would be presumed to vest with the producer;
- If the director is working on a full-time salaried employee basis (rather than as an independent or freelance contractor), all copyright would be presumed to vest with the employer producer.
The Attorney General’s Department envisages that the draft bill will be before Parliament within six months.