Copyright

Copyright

For this issue of NZTECHO, we thought it would be helpful to write an article setting out the key aspects of copyright in New Zealand and then briefly explaining its relevance to ‘chain of title’ in the screen production industry.

Copyright is a type of intellectual property which gives the creator (termed “author” in copyright legislation) the exclusive legal right to deal with their original creative works as property for a period of time. In New Zealand, copyright law is governed by the Copyright Act 1994.

Economic benefits

Copyright incentivises creation by giving authors exclusive property rights in their original works, allowing them to sell or license such works in exchange for value (normally money), hence rewarding and incentivising creation. Without the protection of copyright, unauthorised copying and distribution of works such as music, film, and art would be permitted and therefore there would be less incentive to create such works. Note that the copyright in a work and the work itself are separate concepts; the author owns the copyright but may not own every work in which its copyright exists.

Creation of Copyright

Copyright arises very simply; it is a common misconception that it is complicated or costly to obtain. Essentially, all one has to do is take or come up with an idea and then record or express that idea in an original way. It is important to note that copyright does not protect an “idea” but only the “expression” of an idea, which is why for copyright to arise, the idea has to be manifested in some way, for example by way of drawing, writing, or filming. This concept is known as the idea/expression dichotomy. For example, if you draw a picture of a boat (the “idea”), that picture is your “expression” of a boat and you have copyright in that picture. I may not copy your picture (i.e. your expression of the boat), but I can copy the “idea” and draw a picture of that same boat in which case I will have my own copyright in my “expression”.

Copyright must be original

The Copyright Act provides that for a work to be copyrightable, it must be original i.e. not a copy of another work. However, as stated above, copyright does not protect ideas, so in theory an idea can be copied as long as the author’s expression of the idea is original.

Copyright is exclusive

Owners (note that this is distinct from authors, which I will explain further below) are granted exclusive rights under the Copyright Act in respect of their works to do things such as create copies of the work, show it in public, adapt it etc. These exclusive rights can be licensed or granted by the owner to third parties in exchange for value (usually money).

Copyright applies for a limited time

In most circumstances, protection applies automatically from the date of the work's creation (when the author first expressed the work) until fifty years after the author’s death.

Creator vs Owner

The owner and author of a work are distinct concepts in the Copyright Act. Generally, the author of the work will own the copyright. However, in some circumstances, first ownership may vest in a person other than the author due to the following Copyright Act rules:

(a) Arrangements rule: The owner of copyright in a work is the person who made the arrangements necessary for the work to be created. In film, this is the producer. So crew who work on the film and create works such as graphics and costumes will not own copyright in these works; all will be owned by the producer.

(b) Employment rule: In general, copyright ownership in all works created by an employee in the course of their employment vest with the employer.

(c) Commissioning rule: This rule provides that in most cases when a work is created on a client’s instructions for a fee (or other exchange of value), then the person paying the fee (not the author) owns the copyright in the work.

Copyright in Screen Productions – Chain of title

Screen productions involve multiple categories of copyrightable works derived from different elements of a film for example: (a) Literary works such as the treatment and script;

(b) Musical works like the soundtrack and foley;

(c) Dramatic works including actor’s performances; and

(d) Artistic works like graphics and props.

The copyright connected to each of these separate works needs to be licensed or transferred to the production company so that it can then exploit the film by further transferring or licensing the copyright to distributors. The collection of these rights is known as “chain of title,” the chain analogy representing a line of ownership from the original author of a work to the production company. It is important to be aware that other types of intellectual property rights such as trademarks may need to be licensed or transferred for the purposes of chain of title.