The Writer is King: Copyright in Devised Theatre

Wei-Ling Chan is a volunteer lawyer with Arts Law.

Introduction

You’re an actor who has been given a script for a new play or film. From the time you are given the script, until the time the play is ready for stage, or the film is ready to be shot, many hours of rehearsals will take place; the director, the actors, the producer all throw in ideas to shape the story, to bring dimension to the characters, to bring the play or film to life until its is ready to be shown before an eagerly awaiting public. The question arises as to who owns the copyright in this production? Is it the director? The producer? The script-writer? The actors? What about the script?

Copyright Protection and Theatre

In the above scenario, the performance of the play itself will not be protected by copyright. This is because the Copyright Act (the Act) requires that for a work to be protected by copyright, it must be in a ‘material form’. A performance is not a material form. However if the performance was recorded, copyright protection would arise in the recorded performance.

Who owns the copyright when more than one person contributes to the script? The answer to this question is more difficult to answer as levels of contribution can vary. At one end of the spectrum, the writer of a script may create the script without assistance and during rehearsals the director, producer and actors collaborate and contribute ideas to transform the scripted version of the film or play to the version performed in front of the public. At the other end, a writer of a script may not do more than record the ideas of a group of non-writer contributors.

Disputes sometimes arise between playwrights and directors/producers due to differing ideas in relation to the roles and liberties either parties have in relation to the script. In the Sydney Theatre Company production of “Heretic”,^[1] a dispute arose between the director/producer and playwright. A similar dispute arose with the Broadway production of the musical “Rent”.^[2] In both cases, the director, producer and actors contributed ideas, altering the original written scripts during the rehearsal process and transforming the script to its final stage production and claimed some copyright ownership in the script.

Under the Act, however, copyright protection is only given to the actual writers of the script – the individuals who put pen to paper to write down the words to form the script. In fact, the writer may not have contributed any ideas or concepts to the play at all and simply recorded the ideas and contributions of others, for example the director, the producer or the actors. So even though contributions made by non-writers may make up a substantial component of the concepts and ideas of the dramatic work; in the development of the plot and themes, the creation of characters and even the dialogue, the labour of these non-writer contributors are generally not given copyright protection nor are they considered be the authors of the work under the Act. As such, in both the Heretic and Rent cases, the scriptwriter was held to be the sole owner of copyright in the script.

A Work of Joint Authorship

It is possible to create works of joint authorship under the Act, but only if the work has been “produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors.” Therefore there are two elements to joint authorship, firstly, each party’s contribution must not be separable from the others contribution, and secondly, the parties must have contributed as an “author”. Most simply, an author is considered to be the one who wrote down the words for the script. This issue was further contemplated in the United States in a court case involving a claim of co-authorship for the movie Malcolm X^[3].  The Court held that actual authorship was required under the definition of a joint work to be considered an author or a work. A valuable creative contribution alone will not suffice.^[4]

Performers’ Rights

Despite their significant role in bringing a script into existence, generally performers do not receive any copyright protection in relation to their performance. They are, however, given limited protection or recognition for their contributions under the Act in the form of ‘performers rights’. Simply, performers’ rights are the right of a performer to not have their performance filmed or recorded without their permission and to not have any such recording broadcast without their permission.

Conclusion

The current dispute between the director, producer and scriptwriter of the film Axe-fall^[5] involves conflicting claims of who had the original idea for the film where the director claimed to have assisted the writer with the development of the script. It is a common situation where it is not clear who came up with the ideas and nothing was agreed in writing which spells this out. In this situation, according to Richard Harris of the Australian Screen Directors Association, “when things go wrong, it all suddenly becomes murky”.^[6] To avoid this unpleasant situation, since copyright protection is only given to the writers of a script for a film or theatre, and limited protection is afforded to non-writer contributors, it is recommended that non-writer contributors such as directors and producers enter into a written agreement with the writers of the play or film outlining the rights and recognition of their contributions.