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Copyright Law and Ethics

Copyright and legal issues

The Arts Law Centre of Australia and the Australian Copyright Council provides up-to-date resources that cover many of the issues faced by filmmakers.

Copyright law provides that any content used as part of a production must be wholly created by the maker of the film - it should be new and original work. Otherwise written permission must be sought from the copyright-holder agreeing for their work to be included in the production.

All communication with copyright holders must makethe outcomes of the work clear, and where it will be seen. This affects what rights are required and what fees may be charged.

Some key legal issues

  • Sound and music - You may have bought a CD or paid for some music online. You still need to obtain written clearance from the owner of the copyright to use it in a film production. This may require authorisation from both the record label (the publisher) and the songwriter and performer, as in some cases the rights are held jointly. Start by contacting the publisher. Even if your school has an APRA|AMCOS licence, you still need to obtain written clearance from the copyright owner of the music you intend to use.

  • Appropriation -Be aware when using others' work and vigilent that your use does not infringe the rights of the original artist.

  • Photographs - Images can be sent around the world so quickly today. This increases the risk of photos that were meant to be private entering the public arena. Consider the ethics of image production and the origin of their source materials - particularly important if the subject has little or no concept of the final use of an image.

  • Commercial photography - Any photograph taken for a commercial purpose features a persons' image should be covered by a legally binding model release form. Free sample model and property release forms are available at: http://www.dpcorner.com/all_about/releases.shtml. The Arts Law Centre of Australia charges a fee for downloading its release form. Note that photographers should seek legal advice to ensure that any release form they use reflects current Australian legislation.

  • Street photography - See the Arts Law Centre of Australia for information about photography in public places: http://www.artslaw.com.au/LegalInformation/StreetPhotographersRights.asp

  • Photography online - Many sites provide exhibition, distribution and commercial outlets for photographic media. They often service both general public and commercial users. One of the largest photo-sharing websites is Flickr. Care must be taken when uploading images to these sites. Assigning the wrong license type can make an image available to the commercial market at no cost.

  • Moving image - Refer to the Arts Law Centre of Australia to ensure that you are protecting yourself as a filmmaker and your work. 

Creative Commons

Creative Commons is a rights regime comprising of a range of licenses creators can choose to apply when publishing their work. You choose a set of conditions that you wish to apply to your work in both commercial and non-commercial contexts. The four Creative Commons licences are: Attribution, Share Alike, Non-Commerical and No Derivative Works.   

Moral rights

‘Moral rights’ are the rights individual creators have in relation to copyright works or films they have created. Moral rights are separate from the ‘economic rights’ of the copyright owner. The creator of a work, who holds moral rights, is not necessarily the owner of copyright in the work.

In Australia, artists and filmmakers are protected by moral rights. Unlike some other jurisdictions, these rights do not have to be asserted. They come into effect automatically upon the creation of a work.

Search the Australian Copyright Council for 'Moral Rights'.

What is meant by ethics?

Ethics is a term we use to explain moral concepts as opposed to laws, such as good and bad, right and wrong, justice, and virtue.

All filmmakers need to think about ethics, especially if involved in factual/documentary production.

In documentary film, the filmmaker is constantly making decisions about their film:

  • the way the story is told
  • how the characters are represented
  • what facts are included or excluded

Factual stories represent the views of their subjects. They also represent the views of the filmmaker through editing, camera angles, and lighting decisions. Deadlines, budgets, point of view and perspective can affect the filmmaker’s relationship with the subject negatively, potentially leading to serious ramifications.

The best way to avoid the problem is to construct an ethical framework at the beginning of the project.

Some key ethical issues

  • Power imbalance - what steps can be taken to ensure that the rights of all parties are respected and upheld?
  • Audience and the range and scale of distribution - be clear with a film's subjects about the outcomes of the project. 
  • Financial and intellectual reward - what would the film's subjects want to receive in return for participation?
  • Cultural and personal respect - be respectful of the people and culture a film represents.
This section is not intended to be definitive nor to provide legal advice. A professional opinion should be sought if there is any doubt about the legal issues associated with the work being created.