Copyright and Moral Rights in the Film and TV Industries
COPYRIGHT AND MORAL RIGHTS IN THE FILM AND TELEVISION INDUSTRIES: Another in our series of legal resources for creative people about.
- What is copyright?
- How does copyright apply to the film and television industries?
- What else does copyright apply to?
- What are the individual rights that are included in copyright?
- Who owns the copyright in a film or television programme?
- Can more than one person own the copyright in something?
- Do I have to register my copyright?
- Are there any other requirements before copyright will apply?
- How long does copyright last for?
- How do people know that I am the owner of my copyright?
- Are there any situations where copyright does not apply?
- Are my copyright rights enforceable throughout the world?
- What is copyright Infringement and how does it occur?
- What can I do if someone is infringing my copyright?
- How do I transfer my copyright to someone else?
- Do I have to assign my copyright to enable someone else to use it?
- What is the real difference between assigning and licensing copyright?
- What are moral rights?
- How do moral rights apply in the film and television industries?
- What rights do moral rights actually provide for?
- What does the ‘right of attribution’ mean in practice?
- What does the right against ‘false attribution’ mean in practice?
- What does the ‘right of integrity’ mean in practice?
- What can I do if someone is infringing my moral rights?
- Can I transfer my moral rights to someone else?
- How long do moral rights last?
- Do moral rights need to be registered?
- Are there any situations where moral rights do not apply?
The information provided on this blog has been made possible by the funding received by from the New Zealand Law Foundation.
What is copyright?
Copyright is a kind of ‘intellectual property’. Other kinds of intellectual property include trade marks and patents. For more information on trade marks please refer to our ‘Trade Marks’ Fact Sheet.
The term ‘copyright’ is really just a broad description of a group of more specific individual rights. So when you hear people talk about copyright existing in something or applying to something what is really meant is that the group of more specific rights comprising copyright apply to the thing in question.
How does copyright apply to the film and television industries?
Copyright only applies to certain kinds of things. Most importantly for the film and television industries, some of the things that copyright applies to are:
- A dramatic work, which includes a dance or mime and a scenario or script for a film;
- A literary work, such as the words of a book, poem, magazine or newspaper article, speech or song;
- A musical work being music excluding any words that might be associated with such music as in the case of a song; and
- A film, which is defined in the Copyright Act 1994 as “a recording on any medium from which a moving image may by any means be produced”.
The Copyright Act does not allow you to make an “adaptation” of a literary or dramatic work without the copyright owner’s permission. An adaptation of a literary or dramatic work includes:
- a translation of the work from one language to another;
- turning a dramatic work into a literary work;
- turning a literary work into a dramatic work; and
- converting a work into a form in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, newspaper, magazine or similar medium.
For example, you will need to obtain an assignment or licence of copyright from the author of a novel to enable a scriptwriter to revise the novel into a film script, and then subsequently make the film script into a film.
Where musical works are to be included in the soundtrack of a film, a licence from the copyright owner permitting the music to be used will be required. If a sound track album is to be produced from a TV programme or film then it will also have to be ensured that a licence is in place permitting the use of the music in this way. If you would like to find out more about copyright in music,
songs and sound recordings please refer to our Fact Sheet on ‘Copyright for Musicians’.
What else does copyright apply to?
Some of the other things that copyright applies to are paintings and photographs.
If you would like to find out more about copyright in paintings and photographs please refer to our Fact Sheet on ‘Copyright for Visual Artists and Photographers’.
What are the individual rights that are included in copyright?
Copyright gives the holders of copyright in something in which copyright can exist, such as a film or a script, a range of exclusive rights. These rights can either be exercised by the copyright holder themselves or the copyright holder can grant other people the right to exercise these rights on their behalf.
The exclusive rights provided by copyright include:
- the right to copy the copyright work;
- the right to release copies of the copyright work to the public whether by sale or otherwise;
- the right to show the copyright work in public;
- the right to broadcast the copyright work; and
- the right to make an adaptation of the work.
Who owns the copyright in a film or television programme?
Generally speaking the person that creates the thing in which copyright is able to exist is the owner of the copyright. There are however some important exceptions to this. For instance the Copyright Act 1994 provides that the person who makes the arrangements necessary for the making of a film will be the copyright owner in it. Within the film and television industries it is the producer that takes on this kind of role as they responsible for the production costs, as well as the overall organisation and coordination of the production. Consequently without a written agreement specifying otherwise, it is generally the producer who will own the copyright in a film.
Can more than one person own the copyright in something?
It is possible for more than one person to own the copyright in something in which copyright can exist. Unless the owners decide by written agreement between themselves the percentage ownership they will each have, then at law they will each be deemed to have an equal share in the work. Under copyright law this also means that none of the joint copyright holders will be
able to exercise any of the copyright rights in the work unless they have the agreement of the other joint copyright holders.
However, in the film and television industries, the producer must solely own the copyright in the work, as funders and broadcasters will require the producer’s guarantee that the producer holds all the necessary rights before providing finance or broadcasting the film/television programme. Therefore, anyone involved in the production, including the director, must assign any such copyright rights they have to the producer. The producer must also ensure that they have received assignments of or appropriate licence to use any other copyright material that may included within the film, for example, the screenplay on which the film is based or the music commissioned for inclusion in the film.
Do I have to register my copyright?
Copyright does not need to be applied for or registered. Due to the workings of the Copyright Act 1994 copyright arises automatically when something in which copyright can exist is created in a material form.
Are there any other requirements before copyright will apply?
As well as having to be recorded in some kind of physical format, in order for copyright to apply, the work must also be original. For this originality to exist copyright law also requires that there must have been some degree of effort and skill in the creation of a claimed copyright work.
How long does copyright last for?
In respect of literary, dramatic or musical works, copyright lasts from the time that copyright comes to exist in the work (e.g. the point at which all of the requirements mentioned above are satisfied) until 50 years after the death of the author of the work.
In respect of sound recordings and films copyright only lasts for the longer of either fifty years from the end of the calendar year in which the sound recording or film is made or fifty years from the end of the calendar year in which the sound recording or film is made available to the public.
How do people know that I am the owner of my copyright?
As copyright does not have to be registered or notice given of its creation in any kind of formal way, proving who the owner of copyright is can sometimes be problematic. This is typically dealt with in the film and television industries by the inclusion of a copyright notice in the end credits of the film or programme. Copyright notices will generally take the following form:
© [insert name of copyright owner], [insert year of creation of the work]
e.g. © John Smith, 2008
The above note is sometimes also followed with wording such as ‘All rights reserved’.
Although adding the above note will not necessarily give a copyright owner any better rights in any case, it at least puts anyone else on notice that comes across the film or other copyright work that someone is clearly asserting their copyright ownership.
Are there any situations where copyright does not apply?
There are in fact a number of cases when the otherwise exclusive rights provided for by copyright will not apply. Examples of these include situations of legitimate review of the work in question, where the work is only incidentally used, where it is used in relation to the reporting of current events, and where it is used for private research or study or for certain other educational purposes.
Are my copyright rights enforceable throughout the world?
Copyright law varies in different countries around the world. However, most countries are parties to international treaties under which countries essentially agree to recognise copyright in a work created in a foreign country party to the applicable treaties.
It is important to note, however, that some of the basic principles of copyright as they apply in New Zealand are in fact different in other countries. For instance, in many other countries, including Australia and America, copyright lasts for much longer than it does in New Zealand. Also in America there is a registration process that applies in respect of copyright which, although not essential, does provide significant benefits to the copyright holder if complied with.
What is copyright Infringement and how does it occur?
Copyright Infringement occurs when someone exercises any of the rights granted exclusively to a copyright holder without the copyright holder’s permission. For example, copying all or a substantial (i.e. important or distinctive) part of a work without the permission of the copyright owner.
What can I do if someone is infringing my copyright?
If someone is infringing your copyright and you are not able to resolve the matter directly with the party in question yourself, you should contact a lawyer with experience in the creative industries to provide you with assistance in asserting your rights.
The Copyright Act 1994 provides for a range of penalties for someone who is found guilty of infringing copyright. Depending on the type of infringement these penalties can range from substantial fines through to criminal penalties such as jail time.
How do I transfer my copyright to someone else?
Copyright is transferred by assigning the rights in the copyright in question to someone else. To be legally binding in New Zealand, an assignment of copyright must be in writing and signed by the person who is assigning away their copyright.
Do I have to assign my copyright to enable someone else to use it?
Without giving away ownership in any specific copyright, permission can also be given to other people to make use of the copyright in question in certain specific ways or for a certain period of time only. This is known as a licence. A non-exclusive licence does not have to be in writing, but an exclusive licence does. However in any event, for the sake of certainty, any dealings in copyright should be covered off in a written agreement, so that there is no confusion over what exactly has been agreed.
What is the real difference between assigning and licensing copyright?
It is important to be very wary of the differences between assigning of copyright and licensing copyright. An assignment of copyright is effectively a sale, meaning the ownership in the copyright will transfer to someone else. However, with a licence the copyright owner retains ownership of the copyright and is just granting someone else the right to do certain things with the copyright.
Licence agreements are most commonly used when broadcasters screen or distributors exploit films or television programmes on certain conditions and for certain periods of time. In these cases the producer is not giving up ownership in the copyright of the work in question, but rather they are just granting a right to use the copyright on specific terms.
What are moral rights?
Moral rights are types of intellectual property rights that are related to copyright. Moral rights are often referred to as “personal rights” and are separate from copyright rights, which are often referred to as “economic rights”.
How do moral rights apply in the film and television industries?
Under New Zealand law the director of a film or television programme (if it qualifies within the definition of film in the Copyright Act 1994) will have moral rights in the film or television programme they create.
Although there are others who will also potentially have moral rights in respect of the material that may be included within a film or television programme probably the most notable example is that writers of screen plays or novels on which films are based will also have moral rights in respect of their work as it is included within a film or television programme.
What rights do moral rights actually provide for?
Under the Copyright Act 1994 moral rights include:
- the right for a director to be identified as the director of a television programme or film, or the right of a writer to be acknowledged in respect of their contribution to the project (the “right of attribution”);
- the right for a person to not have themselves represented as being the director of a television programme or film when it was in fact directed by someone else, or the right of a writer to not have themselves represented as having contributed to the project when in fact they didn’t (the right against “false attribution”);
- the right for a director to object to derogatory treatment of any television programme or film they have directed, or the right for a writer to object to any derogatory treatment of their work as included in the project (the “right of integrity”).
What does the ‘right of attribution’ mean in practice?
The director of a film or television programme has the specific right to be identified as such, unless they have specifically waived their moral rights by agreement, which is common practice in film industry contracts. If the director does waive their moral rights, this means that there is no legal obligation to be credited as director of the film or television programme; however it is standard practice within the industry for credits to be given at the end of the film or television programme.
The writer of any work that a film or television programme is based upon has the right to be identified as the author of the work whenever the film or television programme is broadcast or copies of the film or television programme are released or sold, unless they have specifically waived their moral rights in writing.
What does the right against ‘false attribution’ mean in practice?
As inferred above this moral right gives a director the legal right to take action against someone who falsely claims they directed a particular film or television programme.
As inferred above this moral right gives a writer the legal right to take action against someone who falsely claims they created a particular work.
What does the ‘right of integrity’ mean in practice?
The ‘right to object to derogatory treatment’ means that a director can take action against anyone who makes changes to a film or television programme they have directed such that their reputation is likely to be negatively affected, whenever the film or television programme is broadcast or copies are released or sold.
The ‘right to object to derogatory treatment’ in respect of a writer means that a writer can take action against anyone who makes changes to their work, such that their reputation is likely to be negatively affected whenever the film or television programme based on or including their work to is broadcast or copies are released or sold.
There must also be some reasonable basis for the belief that the changes made to the work will impact on their reputation in a detrimental way. Often television broadcasters may need to edit the work to comply with broadcasting standards, or to fit into programming time slots and these actions are generally not considered infringements of moral rights.
What can I do if someone is infringing my moral rights?
If someone is infringing your moral rights, and you are not able to resolve the matter directly with the party in question yourself, you should contact a lawyer with experience in the creative industries to provide assistance in asserting your rights.
The Copyright Act 1994 provides for injunctions and damages as potential penalties in respect of the infringement of moral rights.
Can I transfer my moral rights to someone else?
Moral rights cannot be sold or transferred to another person. The only exception to this is that moral rights can be passed in a Will to such people as specified, or otherwise the rights just pass with the rest of a person’s estate.
How long do moral rights last?
The right to be identified as the creator of a copyright work lasts for the length of time that copyright in the work in question lasts for. The right to object to derogatory treatment also lasts for the same period of time. However, the right relating to ‘false attribution’ only lasts for the period from the creation of the work in question until 20 years after the death of the creator of the work.
Do moral rights need to be registered?
Moral rights do not need to be applied for or registered. They arise automatically due to the workings of the Copyright Act 1994.
Are there any situations where moral rights do not apply?
There are a number of exceptions to the rights and protections otherwise provided for by moral rights. Examples of these exceptions include situations of legitimate review of the work in question or where it is only incidentally used.
Written by entertainment lawyer David McLaughlin.