Queensland University of Technology Law and Justice Journal
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MATTHEW RIMMER [*]
The dispute between the playwright David Williamson and the director and producer
Wayne Harrison over the production of the play Heretic was fought out in
the theatre community, the legal system, and the
media.[1] It articulated a number of
anxieties about the nature of authorship, collaboration, and
appropriation.
Williamson and Harrison decided to collaborate upon a play
about the intellectual dispute between the Australian academic Derek Freeman
and
Margaret Mead, the author of On The Coming Of Age In
Samoa.[2] The Sydney Theatre
Company production, though, was fraught with difficulties. Williamson
complained that the production by Harrison
and his collaborators took liberties
with the script. He was bitter that the character of Margaret Mead was
transformed into public
icons of the 1960s, such as Marilyn Monroe, Barbara
Streisand and Jackie Kennedy. He considered that the addition of words to the
text - such as ‘Happy Birthday, Mr President’ - without his
authorisation was a breach of the ethical norms and standards
that governed the
theatre. For his part, Harrison was distressed that his authority as the
director of the play had been compromised.
He thought that the interference of
the playwright in the direction of the cast was a breach of the protocols and
conventions of
the theatre.
The playwright instructed his agent, Tony
Williams, to seek an injunction against the Sydney Theatre Company for the
breach of his
contract, which stated that only lines he had written or approved
could be used.[3] The agent retained
David Catterns, a Queen’s Counsel specialising in intellectual
property.[4] However, Williamson
refrained from taking out an injunction in the face of a negative reaction from
the theatre community.[5] He argues
that he was powerless to change anything substantial once he had retreated from
the threat of legal action against the
company:
The picture of me as
omnipotent and able to order directors such as Wayne [Harrison] around at will,
is in fact far from the truth.
Writers in theatre and film, even if they have
impressive track records, are far less powerful than is often assumed. The
critic
John McCallum made an important point when he queried how lesser known
and starting playwrights could ever make their voices heard,
given the nature of
this power
imbalance.[6]
Paradoxically,
the dispute over the interpretation of Heretic had the effect of
generating and stimulating further public interest in the play. The show took
$1.1 million. Angie Bennie reflected
that there was a pattern of behaviour:
‘It seems that there cannot be a new Williamson play without a new
Williamson brawl’.[7]
The conflict took place on the cusp of the introduction of a new scheme
of moral rights, the Copyright Amendment (Moral Rights) Act 2000 (Cth).
It offers an illuminating case study of the operation of moral rights in the
context of the performing arts. First, the dispute
highlights disparities under
the moral rights regime in the treatment of dramatic works and cinematographic
films. This double standard
undercuts the current push towards the
simplification of the Copyright Act 1968 (Cth), and the consistent
application of the law across subject
matter.[8] Second the conflict raises
important questions of joint authorship under copyright law and dramatic works.
It is argued that the
current paradigm, in which the playwright is considered
the sole author of a dramatic work, is outdated and unjust. There needs
to be
greater recognition under copyright law of the contributions of other
collaborators in a performance - such as the director,
the producer, the
performers, and the designer. Third, the controversy is relevant to current
investigations into the interaction
between copyright law and contract
law.[9] It provides an insight into
the prevailing contractual practices and industry trends in the performing arts.
There is a need to
explore new models for the effective management of copyright
law and dramatic works.
This paper investigates the claims of the various collaborators involved in
the dispute over Heretic. It considers the dispute over authorship and
collaboration against the background of past historical research into copyright
law
and dramatic works - in relation to William Shakespeare, Bertolt Brecht,
Samuel Beckett, and John Barton.[10]
Part 1 examines the arguments of the playwright Williamson that his economic and
moral rights in the dramatic work were violated by the
production of
Heretic. Part 2 considers the call of Harrison for greater recognition
of the roles of the director and the dramaturge. Such claims are considered
in
the context of legal debate about the meaning of joint authorship. Part 3
focuses upon the question of whether the originating producer should retain
rights in respect of a dramatic work. Part 4 reflects upon whether performers
should enjoy comprehensive economic and moral rights in respect of their
performances. Part 5 relates the point of view of the designer John Senzcuk.
The Conclusion examines the ramifications of the dispute over Heretic in
relation to copyright law and the performing arts.
An editorial stated that the dispute over Heretic raised an
important question for public debate: ‘What rights do writers have
regarding their texts?’[11]
It is worth considering whether the economic and moral rights of Williamson
would have been infringed by the theatrical production
of the Sydney Theatre
Company.
Williamson cast the debate over the interpretation of Heretic in
terms of romantic authorship and individual possession. He maintains that the
authority of the writer and the validity of the
written text that they produce
are paramount.
Williamson thinks that it is his prerogative to stamp his
personal interpretation over his work. For instance, he lectured the cast
of
Dead White Males and Heretic about the correct meaning of the
texts.[12] McKenzie Wark comments
that the playwright is anxious to preserve his interpretative authority:
‘Williamson, like many professional
writers, is hostile to the view that
the reader makes the meaning of the
text’.[13] The author is
represented in romantic terms as the individual, expressive origin of the play.
The relationship of the author to
the play is seen as direct and personal, and
thus sacrosanct and inviolable. It is assumed that the written play takes
priority
and precedence over the production of the play. As Jonathan Bates
observes: ‘The Romantic idea of authorship locates the
essence of genius
in the scene of
writing’.[14] It seems
that the role of the performers and the director is to bring about the
realisation of the written text. The romantic faith
in the authority of the
writer and the validity of the text has been reinforced by copyright
law.
As the author of the literary and dramatic work, Heretic,
Williamson enjoys a number of economic rights under the Copyright Act
1968 (Cth). He holds the right to reproduce the work in material form,
and the rights to communicate that work to the
public.[15] Williamson can exploit
the work, Heretic, through assignment of ownership and licensing. He can
also bring legal action in respect of any infringement of his bundle of economic
rights. Effectively the Copyright Act 1968 (Cth) rewards the
playwright for producing original creative work in a tangible and material form.
However, it fails to acknowledge
the labour of any other collaborators in the
theatre.
The economic rights of the playwright may be modified or supplemented by
private arrangements. Individual contracts negotiated by
creative artists can
secure rights and privileges in advance of those provided by copyright law.
Local practice can outstrip copyright
law reform. Harrison comments:
At
present, the theatre company signs a contract with the playwright guaranteeing
that everything created in the rehearsal room becomes
the property of the
playwright. This is despite the fact that the theatre company has no right to
assign the creative rights of
the actors in its employ. In the Heretic
example this contractual arrangement became most ironic. For while David
Williamson was prepared to criticise elements of the production
in public he was
busy including those same elements in the published version of the
text.[16]
The case of
Williamson is illuminating. His contract provided that no textual alterations to
the play could be made without the permission
of the author. This clause is in
effect a miniature version of the moral right of integrity. However, the clause
is much more specific
and focused in the sense that it is restricted to textual
alterations, and does not deal with other forms of derogatory treatment.
It is
debatable that the changes to the script would have breached the clause in the
contract that no textual alterations could
be made without the permission of the
author.
Williamson is in a strong legal position because of a
combination of his economic rights and his contractual rights. There are a
number of precedents dealing with copyright law and television which support his
position.
In Frisby v BBC, Mr Frisby sold a play to the
British Broadcasting Corporation with an understanding that a particular line of
the play gave form
to the entire play, and was crucial to the work as a
whole.[17] He sued for copyright
infringement after the line was removed. The judge decided that the crucial
nature of the line, and the clear
direction the author had given to the
purchaser, meant that a single line of that particular play constituted a
‘substantial’
part of the work, even though the BBC had paid for the
use of the play, and the part in question was small.
In Gilliam v
ABC, the creators of ‘Monty Python's Flying Circus’ took
legal action against the American Broadcasting Corporation because
they had
drastically edited their programs and edited out all
profanities.[18] The group had a
contract which provided for strict creative control, much like the one held by
David Williamson. The court of appeal
recognised that American copyright law
did not recognise a cause of action for the violation of an artist's moral
rights. Nonetheless,
the court enjoined the ABC from broadcasting the severely
edited television programs, because the editing constituted copyright
infringement
in the writers’ scripts and because the Lanham Act protected
against mutilation of artistic works as a false designation of
origin of
goods.
In the face of such precedents, the Sydney Theatre Company could
mount a rearguard defence that Williamson consented to the alterations.
Harrison maintained: ‘But it isn't true that I created these personae
without David's
permission’.[19] He asserted
that there are a number of facts which would support this interpretation of
events.[20] First, Harrison argued
that Williamson was included in the design process before Heretic went
into rehearsal. He observed that the playwright had the power to approve or
veto any ideas for the production. Second, Harrison
reflects that Williamson
went on holidays and gave him permission to workshop the play and take the
initiative in solving problems
encountered by the cast and uncovered in the
text. He communicated any changes to the play by telephone and fax. Third,
Williamson
saw a complete run through of the play in the rehearsal room on three
occasions. He also praised the efforts of the director and
the cast in public.
It is debatable whether such facts, if accepted in a court, could establish
explicit or implicit approval for
the changes. In any case, Harrison also
argued that he could not change the nature of the production for various
reasons, because
‘you reach a point of no return in a production week
where you can't unravel major elements of a production without doing enormous
damage to what you are trying to
do’.[21]
Harrison
comments that the dispute over Heretic prompted the Sydney Theatre
Company to reconsider its contractual arrangements over copyright:
What
Heretic has done is force the Sydney Theatre Company to revise all its
contracts, to determine what exactly are our legal rights, our legal
obligations, something that has not been attended to in any detail over the last
decade and a half.[22]
If a
flagship company like the Sydney Theatre Company has been so lax, it is likely
that many other companies have not given the subject
much thought. There needs
to be a greater consciousness of copyright law in the field of the performing
arts.
In his biography of Williamson, Brian Kiernan comments: ‘The
larger issue (still to be legislated on) is that of author's moral
rights,
central to which is their right to protect their reputation by being able to
ensure not only that their work is attributed
to them but also that the work so
attributed is theirs in its
entirety’.[23]
At the
time of the crisis, there was no law expressly requiring recognition of
attribution of authorship, or preservation of the integrity
of a work.
Aggrieved artists had to rely upon an eclectic range of law - such as contract
law, passing off, the Trade Practices Act 1974 (Cth), and
defamation.[24]
The Federal Government has sought to remedy this situation with the
introduction of a new scheme of moral rights, the Copyright Amendment (Moral
Rights) Act 2000 (Cth). In the main, the legislative debate over the
introduction of moral rights was focused upon the film industry to the exclusion
of other interests. The Australian Writer's Guild pushed for the legal
recognition of screenwriters as authors of films. Williamson
was an active
supporter of this campaign, saying: ‘Although I would not deny that the
script is a blueprint for a future production,
and other skilled inputs are
necessary to make it work, to be acknowledged as the creator of the blueprint is
a matter of fundamental
justice’.[25] The
Attorney-General, Daryl Williams, observed in the second reading speech in
Parliament:
As has been noted in the debate, films by their nature need
different treatment compared with other works. In fact, the bill already
recognises the different nature of films compared with literary, dramatic,
musical and artistic works and is consistent with the
treatment of such subject
matter under the existing Copyright Act 1968
(Cth).[26]
The Federal Government accepted that screenwriters could be considered to be
authors of a film or a television program, along with
the director and the
producer.[27] They also recognised
co-authorship agreements,[28]
industry standards,[29] alternative
dispute resolution procedures,[30]
and special rules about consent[31]
and duration.[32]
In the
process of law reform, there does not seem to have been a lot of thought given
to the relationship between moral rights and
other kinds of works - in
particular dramatic works. The Discussion Paper on the Proposed Moral Rights
Legislation For Copyright Creators does not mention any examples of reported
moral rights abuses in the context of theatre, dance or
performance.[33] However, the Arts
Law Centre of Australia and other key arts organisations made a joint submission
to the Federal Government:
The organisations representing the arts and
not party to the film and television industry negotiations and agreement wish to
state
up front that their... overriding concern is that the proposed legislation
fails to take into account the interests outside the film
and television
industry.[34]
In
particular, there is a pressing need to consider the implications of moral
rights for dramatic works - such as theatre, dance,
musicals, and live
performance.
Williamson had no reason to complain about attribution or
false attribution in relation to the production of Heretic. He received
due credit for his authorship from the Sydney Theatre Company. However,
Williamson could argue that the production
directed by Harrison harmed the
integrity of the play, Heretic, to the detriment of his reputation. In
an article, the playwright recalled:
I gave both Wayne [Harrison] and Liz
[Alexander] a firm but polite opinion that, after sitting in the audience, I was
sure the impersonations
were damaging the integrity and likeability of the Mead
character, and that I would prefer that Mead be simply Mead, and that the
extraneous lines I had written such as ‘Happy birthday, Mr
President’
go.[35]
Williamson was
criticised for a lack of intellectual rigour in Dead White Males on the
grounds that he reduced his antagonists to mere caricatures. He was concerned
that his reputation would be harmed if the
production of Heretic was
crude and glib in its representation of Margaret Mead. However, it is arguable
whether the distortion of one character amounts
to derogatory treatment of the
whole play.
Harrison disputes the presumption that the playwright is the
only one who can exercise moral rights. He contends that it is a dangerous
act
to give moral rights to just one collaborator in a collaborative art form such
as theatre because it has the potential to disadvantage
other collaborators.
Harrison comments:
The only way a playwright can really ensure the
‘integrity’ of what is written is by reading/performing the text
him/herself.
The minute you seek collaborators you enter the territory of
interpretation, subjectivity and trust. Choose your collaborators
carefully,
but don’t impose a tyranny of integrity and singular moral rights on those
you need to transform your skeletal 'map
for a performance' into a
play.[36]
Harrison claims
that the interpretation of Heretic was reasonable in the context of the
collaborative art form of the theatre. First, he claims that the device of
Margaret Mead assuming
various roles is dictated by the dream-like writing in
the script. Second, he wanted to show that Margaret Mead was capable of using
a
culture's iconography as she saw fit. In any case, Harrison insists that
Williamson gave his consent to the changes that were
made to the
production.[37]
It would be a
difficult task for any court to resolve such aesthetic disputes, especially
where mediation proves to be impossible,
as was the case between Harrison and
Williamson.[38] As Jeremy Eccles
comments: 'The concept of a playwright’s moral right to having the
intentions behind his or her words honoured
is virtually unenforceable ... a
lawyer’s
paradise'.[39]
The dispute over the play Heretic raised the question of whether
the director should be considered to be a joint author of a dramatic work, along
with the principal
playwright.
There is a marked difference in the legal
position of the director in the fields of film and theatre. The Copyright
Amendment (Moral Rights) Act 2000 (Cth) provides that the director is
one of the joint authors of a cinematographic film, along with the screenwriter
and the producer.[40] It represents
the director as the author or the 'auteur', bringing together and uniting all
the elements of the cinematic production
in a single creative
enterprise.[41] Michelle Cooper
notes the appeal of ‘auteur theory’:
The auteur theory became
the most dominant model for film criticism, principally because of its
convenience. Film is a complex collaborative
artform with many different people
providing creative contributions to the complete version. The auteur theory
artificially simplifies
this
process.[42]
However, under
the legislation, there is no equivalent recognition that the director should be
considered to be an author of a dramatic
work. The problem is that the director
does not command the same respect in the performing arts, as ‘auteur
theory’
in the film community.
The director and the dramaturge
Harrison denied that the playwright, Williamson, was the sole author of the
play, Heretic. He emphasised that there were several authors. Although
he did not assert that he was the co-author, Harrison claimed that he should
be
seen as one of the joint authors of the production:
There is the author
of the text and the author of the production. Take Heretic, for example.
I believe what took place in the rehearsal room to be as important as David's
words were. What takes place in the
rehearsal room, especially with a new play,
is as much part of the authorship of a play as what is there written on the
page.[43]
Prior to the
rehearsals Harrison collaborated with Williamson in reworking the first draft of
Heretic and transforming the work into a piece suitable for production by
the Sydney Theatre Company. He was responsible for a number of
changes to the
play, including actual plot elements, dramatic structure, character details,
themes, and even specific language.
During rehearsals, Harrison and the cast of
the play further workshopped and developed the play Heretic. They even
added lines to accommodate the various personae of the main character Margaret
Mead.
Harrison was incensed by the accusations that the Sydney Theatre
Company had hijacked the play. He complained about ‘just how
ignorant the
public, the media and even some of my own staff are about how new work is
actually created’, because of a confusion
over the difference between a
play and a production.[44] Harrison
reflected:
Most casual observers believe that David Williamson delivered
Heretic to us as a finished product and our job therefore was simply to
put that finished product on the stage. Nothing could be further
from the
truth. The script was an adventurous mess when it was finally delivered and
subsequent drafts, which I worked on with David,
only went a certain way towards
solving the textual problems. The real solutions came in the rehearsal
room.[45]
Harrison warded off
accusations that he was an advocate of 'director’s
theatre'.[46] He instead embraced a
collaborative form of theatre: 'I’ve never really gone to bat for the
primacy of the director. Indeed
the decade-long Elizabethan Experiment series I
conducted with Dr Philip Parsons was intended to be a major corrective to
directors’
theatre'.[47]
Harrison envisioned that the playwright, the director and the dramaturge should
be considered to be the joint authors of a dramatic
work.
Section 10 (1)
of the Copyright Act 1968 (Cth) defines 'a work of joint
authorship' as the product of 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'. This statutory
recognition provides the possibility that there may be several authors of a
work. However, the courts have narrowly interpreted
the provisions regarding
joint authorship. Lionel Bently comments:
Copyright law denies
authorship to the contributor of ideas and, in cases of collaborative works,
frequently refuses to recognise
contributors as authors in an attempt to
simplify ownership. Because a single property owner means that assignments and
licences
of copyright are easier and cheaper to effect, copyright law prefers to
minimise the number of authorial contributions it is prepared
to acknowledge
rather than reflect the ‘realities’ of collaborative authorship. To
simplify ownership in this way may
privilege certain contributions over others,
but it provides a property nexus around which contractual arrangements can be
made recognising
the value of those other
contributions.[48]
Judges
have rigidly applied the requirement of material
form.[49] They emphasise that a
joint author must do more than contribute ideas; they must participate in the
writing and share responsibility
for the form of expression of the work.
Moreover, judges have applied the criteria of originality in a stringent
fashion. They have
stressed that joint authorship envisages the contribution of
skill and labour to the production of the work
itself.[50] Such doctrines have
been used to minimise the number of authorial contributions and concentrate
copyright ownership.
In his discussion of joint authorship, Harrison
refers to the celebrated lawsuit over the authorship of the Broadway musical
Rent. The dramaturge Lynn Thomson brought a suit against the estate of
Jonathan Larson, claiming that she was the co-author of the Broadway
musical,
Rent, along with the principal playwright. She argued that in her work
as a dramaturge she developed the plot and theme, contributed
much of the story,
created many character elements, and wrote a significant portion of the dialogue
and song lyrics. Lynn Thomson
demanded that the court grant her 16 per cent of
the author’s share of the royalties.
In Thomson v
Larson,[51] the Court of
Appeals in the Second Circuit upheld a lower court’s finding that Lynn
Thomson was not a co-author of a joint
work. Applying the test of co-authorship
from Childress v
Taylor,[52] Justice Calabresi
agreed with the lower court that there were many signs of Jonathan
Larson’s view that he was the sole author
of the musical Rent.
Those included: his retention of sole decision-making authority over changes to
the play, his listing of himself as the author
on Rent scripts, and his
statement in a press interview that in the theatre, 'the writer is king'.
However, Justice Calabresi declined to
rule on the copyright issues. He had no
occasion to rule whether Lynn Thomson had copyright interests in the material
she contributed
or, alternatively whether Lynn Thomson had granted Jonathan
Larson a licence to use the material that she contributed to Rent and, if
so, on what terms. Such matters had not been raised in the lower
court.
In the end, Lynn Thomson and the Larson Estate settled out of
court on the 26th of August 1998. Although the settlement was a confidential
agreement, there were media reports that the terms were favourable to the
dramaturge.[53]
In response
to such legal decisions, creative artists have sought to reform and modify the
operation of copyright law through their
own practices and agreements.
Harrison supports the adoption of contracts that recognise the contribution
of directors and dramaturges, along the lines of Tony
Kushner in Angels in
America:
Several playwrights have pre-empted this dissolution by
cutting their collaborators, usually dramaturges, into the royalty package.
Most notably Tony Kushner agreed to pay his dramaturges 15% of his royalties for
their input into Angels in
America.[54]
The American
playwright Tony Kushner debunks the myth of creation that a play is the product
of individual genius and
inspiration.[55] He agreed to pay
15 per cent of the royalties to the two dramaturges who worked on Angels in
America. He also gives generous credit to his collaborators on Angels in
America in an afterword entitled 'With a Little Help from my Friends'. Tony
Kushner testified as a witness in the Rent case that 'the awarding of
compensation and credit to dramaturges far from disrupting the collaborative
process, enhances and honours
it'.[56] He believed that the
collaborators in the theatre should be equitably remunerated for their labour
contributions. In an interview,
Tony Kushner said that such practices were
informed by a history of disputes over authorship of dramatic works: 'I have
been instructed
through ten years and more of pitched battles over intellectual
ownership and giving people
credit'.[57] His philosophy stands
in stark contrast to most other playwrights like Williamson.
Arguably, the
dispute over Heretic demonstrates the need for a more flexible and
accommodating notion of joint authorship. At present, copyright law privileges
the
written contribution of the playwright, and marginalises the voices of other
contributors. This result derives from a failure to
reflect the multitude of
forms of artistic collaboration. As Roberta Kwall observes:
The process
of making theatre is increasingly collaborative, yet the law is unresponsive to
these present realities. We in theatre
are therefore left to address those
realities through the ethics of our community. If collaboration is to continue,
then must not
all key collaborators be assured of equitable reward for their
contribution?[58]
There is a
need to reshape the doctrine of joint authorship, so that it reflects the
realities of artistic collaboration between the
playwright, the director, and
the dramaturge. This will involve the apportionment of ownership and royalties
according to the relative
contribution of each collaborator. The benefits of
authorship should not be just limited to the playwright, the director, and the
dramaturge. It should also embrace the involvement of the producer, the
performers, and the artistic designer.
Harrison has campaigned for writers’ and performers’ agents
to acknowledge the importance of the original producer in
stage work. He
believed that there was an obligation involved in acknowledging the
collaborators who helped bring a work into existence,
enabling it then to be
exploited by future collaborators.
The Copyright Act 1968
(Cth) provides that, in relation to a dramatic work, the writer shall be
considered the author of a play for the purposes of economic
rights, in the
absence of any agreement to the contrary. It stipulates, in relation to
cinematographic films, that the maker of
the production will be considered to be
the owner of economic rights. Similarly, the Copyright Amendment (Moral
Rights) Act 2000 (Cth) provides that, in regard to a dramatic work, the
writer shall be considered the author of a play for the purposes of moral
rights.
It also controversially provides that, in relation to a cinematographic
film, the writer, the director and the producer shall be
considered the authors
of the film and therefore have the moral
rights.[59] Chris Creswell of the
Attorney-General's Department commented:
The inclusion of producers
reflects the Australian industry position that in relation to films made for
television as opposed to films
made for cinema release, it is the producer who
provides the main creative input rather than the director. This is also the
case
for some other forms of film within the meaning of the act, such as music
video clips and multimedia
products.[60]
There is a
double standard in the treatment of producers in relation to copyright
protection of dramatic works and cinematographic
works. The distinction seems
to be based upon the relative public and private investment in the two forms of
cultural production.
The producer of a play is denied copyright protection
because of a belief that a dramatic work is just concerned with live
performance.
The producer of a film receives copyright protection in order to
facilitate the capital investment that is required to produce and
market such a
work to mass audience.
Harrison comments that the Sydney Theatre Company
was forced to adopt a more commercial position in the marketplace after cuts in
funding by the Federal Government and the State
Government.[61] He adopted a range
of initiatives to address this situation, including changing to a season of more
popular repertoire. Harrison
comments that the Sydney Theatre Company relied
upon the production of Williamson plays for both profile and box office
success:
As government subsidy of major organisations such as the Sydney
Theatre Company has shrunk, we've allowed another economy to develop,
which is
the Williamson economy. Many so-called subsidised theatre companies in
Australia now rely on David Williamson to give them
the profile and box office
success they must have. They use that money to subsidise riskier
work.[62]
The box-office
sales generated by the production of plays written by Williamson allow for
cross-subsidisation of riskier artistic
and commercial ventures. It is a
paradox that the popular appeal of his work allows for the production of
avant-garde work. The
production of Williamson plays serves to make up the
shortfall produced by the shift in public funding to the marketing of the arts.
It also protects the major organisations from the competition of alternative
theatre[63] and arts
festivals.[64]
Harrison
introduced a new policy for the Sydney Theatre Company in respect of the
production of Australian plays.[65]
He was selective in commissioning a number of original productions - including
Furious and Sweet Phoebe by Michael Gow, Blackrock and
Chasing The Dragon by Nick Enright, Fred by Bea Christian, as well
as Dead White Males and Heretic by Williamson. Harrison promoted
the concept of originating writer’s royalties. He sought to obtain one
per cent of receipts
from any subsequent production as a just reward for taking
the original risk on a new work and granting it access to a lucrative
subscription season.
Harrison also picked up new Australian plays from
companies like the Griffin in the Stable Theatre at King’s Cross and the
Playbox
at the Malthouse in Melbourne, and organisations dedicated to the
creation of new Australian work, such as the Australian National
Playwrights’ Centre. He sought to limit the liability of the Sydney
Theatre Company by letting other companies share the risk
for producing
premieres of Australian plays. If they proved popular, the Sydney Theatre
Company would then take them up, negotiate
the changes, and make the necessary
refinements. This was the case for brilliant works like Kafka Dances and
Sixteen Words For Water. The Sydney Theatre Company would pay the
originating producers a royalty of one per cent for the privilege, or let them
be co-producers.
A consensus is forming about the originating producers’
royalty within state theatre companies, and agents acting for writers
and
performers.
Harrison was inspired to fight for recognition of the
originating producer after Strictly Ballroom was turned from a stage-play
into a film.[66] In correspondence,
he recalls that the Sydney Theatre Company received nothing, even though it had
premiered the first professional
stage production of the work:
My spur
was the fact that Sydney Theatre Company as the originating producer of the
stage version of Strictly Ballroom should have shared in the proceeds
from the film version of the piece. It is only by deriving funds from these
subsidiary uses that
companies such as Sydney Theatre Company can afford to
produce the next Strictly Ballroom. But Sydney Theatre Company received
nothing from Baz Luhrmann’s film
success.[67]
The show
Strictly Ballroom was developed at the National Institute of the Dramatic
Arts by a group of theatre students lead by Baz
Luhrmann.[68] The class signed over
the rights to produce the dramatic work on stage to Baz Luhrmann in return for a
percentage of the box office
profits. The group of actors were unhappy that
they were excluded from discussions about adapting Strictly Ballroom into
a film. They finally agreed to assign away the film rights for $24,000 and a
small percentage of the producer’s net profit.
The Sydney Theatre Company
was not as fortunate as the cast from the National Institute of the Dramatic
Arts.[69] They did not receive any
royalties because they did not have any claim to ownership under copyright law
and contract.
In response to the sobering experience of the film
adaptation of Strictly Ballroom, Harrison sought to protect the
investment of the Sydney Theatre Company in the play Blackrock. He
drafted the production contract to cover any film or television adaptation.
Originally the playwright Nick Enright wrote A Property of the Clan for
Newcastle’s Freewheels theatre-in-education
company.[70] Nick Enright then
reworked the material into a new play called Blackrock for the Australian
Peoples’ Theatre and for a production at the Wharf Theatre. He developed
the piece through six drafts and
four workshops at the Sydney Theatre Company,
with assistance from the dramaturge Harrison and the director David Berthold.
The
contract for the creation of Blackrock specified rewards to the
Sydney Theatre Company for any on-sale to film or
television.[71] However, the
producer of the film version of Blackrock refused to pay the royalty to
the Sydney Theatre Company. Fortunately, the playwright Nick Enright paid the
fee out of his writer’s
royalty. There was no litigation because the
ethics of the playwright circumvented the law. This episode suggests that the
utility
of private contracting is limited - especially, in relation to the
privity of contract.
Harrison concludes that, if Heretic has a
future life, the original collaborators should share in future proceeds because
they worked so hard in imposing some order on
the
script.[72] He believes that this
is fair and morally correct. Harrison was upset that, while Williamson was
prepared to criticise elements
of the production in public, he was busy
including those same elements in the published version of the text. He was
concerned that
Williamson profited from the subsidiary rights he enjoyed in the
play Heretic, both from book sales and the royalties earned when a New
Zealand production based on this published text had a season in Wellington.
However, the original producer did not share in the profits from the
exploitation of the play Heretic.
Harrison believed that his model
for originating producers’ rights has overseas
precedents.[73] He cited the
practice of the National Theatre of Great Britain. If a play is originally
produced at that particular institution,
the playwright is compelled to give one
third of all royalties to the company for all subsequent productions of dramatic
work. This
agreement is intended to recompense the producer for showcasing,
branding, advertising, and promoting the work to the outside world.
In return,
the playwright gains the imprimatur of the National Theatre of Great Britain.
There are two important qualifications
to this agreement. First, there is a
threshold in operation. The originating company does not start cutting into the
author's royalty
until after the author has earned a certain figure through the
royalty. This means only the very successful works qualify. Second,
the theatre
company cannot demand the royalty slice if it itself is the producer or
co-producer of a transfer/subsequent season.
Such creative contracts are
of course no substitute for secure legislative protection. A strong case can be
made that the contribution
of the original producer should be acknowledged under
copyright law. The general manager of Bangarra Dance Theatre, Jo Dyer, concurred
with Harrison that companies should receive recognition for the risks involved
in producing a dramatic work:
Often the original producers who scraped
and saved to put up the original capital get no returns at all. That is not to
say that
there aren't creative artists who came up with the creative work.
There needs to be some recognition of the huge investment and
risks taken by
small organisations when they are the originating producers of
works.[74]
It is arguable
that the producers of dramatic works should receive due credit and reward within
the legal system, especially given
that the financial and creative contributions
of film producers are accommodated under copyright law.
The role of the performer has been marginalised under copyright law in
both theatre and film because of concerns that a performance
cannot be fixed in
a material form.
It is striking that the performers had few opportunities
to participate in the debate over Heretic. The actor Liz Alexander said
that the row between the playwright and the director unsettled the
cast.[75] She was grateful for the
support of Harrison: 'He’s a stimulating director, he gives you space to
work in and he has a pretty
good sense of humour - I think you’ve got to
have that when you’re
working'.[76] Liz Alexander admitted
that she hated the controversy around her role as Margaret Mead:
With the
different assertions made in the press by different people who have been
involved in it, it’s been difficult to continue
working in a positive and
happy manner ... It just puts a little spanner in the works. A company that
was very happy about the
production has now, in a way, each night, to deal with
the controversy that’s surrounded
it.[77]
It is worthwhile
considering whether the actors deserve performers’ rights given their
contribution to the production of the
dramatic work.
The critics of the
playwright claim that the pre-eminence of the writer and the text is subverted
by the act of performance. The
director, Harrison, debunked the view that
performers do not make a creative contribution, which is comparable to the work
of the
playwright. He argued that actors play a significant role both in the
creation of a written script and in the production of the
play:
The
perception is that the playwright brings the script along on the first day of
rehearsal and all we do is faithfully put life into
what's written on the page.
Nothing could be further from the truth - it is a continuing, evolving process
where the actors become
the major dramaturges questioning, every line:
‘My character wouldn't say that - do you realise the consequences of
this?’
They have a major role to play in the evolution of the work ...
but when it does dissolve into a bunfight, the people involved in
the process
ask ‘why are we doing all this work when we're being abused at the other
end of it. Why are we doing this when
the good ideas we had in rehearsal become
part of the published text, which earns the author more
money’.[78]
The
performance is not something ancillary, accidental, or superfluous that can be
distinguished from the play
proper.[79] The dramatic work is
incomplete and unfinished in its script version. The individual performance of
the script is required to bring
the play into existence. The creativity of the
writer is dependent upon the improvisation and group authorship of the cast.
The
meaning of the text is open to interpretation by the voice, the gestures,
and the bodies of the actors. The performers are thus
creative partners and
collaborators who deserve respect.
The dispute over the interpretation of
Heretic also raised issues of performers' rights. The artistic director,
Harrison, reflects upon the controversy:
The other legacy of the
Heretic experience has to do with intellectual rights. Actors and
directors and dramaturges are starting to question the nature of the work
they
do. The convention is that all the work done in the rehearsal room becomes the
copyright property of the playwright. But ownership
of copyright doesn't
necessarily mean that everything was written by the playwright - it becomes a
very dicey legal area, especially
if it blows into a media circus when people
are being accused of hijacking the play, of doing unauthorised work on
it.[80]
It is worth
considering whether the contribution of the performers to the creation and
development of a dramatic work is deserving
of copyright
protection.
Harrison recognises that limited copyright protection has
been granted in respect of performances such as circus and variety
acts.[81] He accepts that such
performers enjoy the right to prohibit the recording of their live performance,
and the right to control an
unauthorised recording and transmission of their
live performances under Part XIA of the Copyright Act 1968 (Cth).
Harrison recognises that performers make a great creative and economic
contribution in the collaborative process of theatre.
He doubts, though, that
actors and performers would want to reduce their work to material form. He
believes that they would prefer
a performance to be fluid and ephemeral, rather
than fixed in an archive of a sound recording or video: ‘Many actors
actually
resist the notion of archivally recording their stage work - they like
to think that what they create is fluid, evolving and ultimately
‘of the
moment’, something re-created on a nightly basis with the most important
collaborators, the
audience’.[82]
The
courts have been reluctant to grant full copyright protection to performers. In
the United Kingdom, there has been debate over
the meaning of a ‘dramatic
work’ in relation to a short film called Joy, which inspired a
commercial advertising the Irish beer
Guinness.[83] There was doubt as to
whether a performance recorded on film amounted to a ‘dramatic
work’.
The Federal Government has released a Discussion Paper on
whether it should implement full copyright protection for performers, at
least
in relation to sound recordings.[84]
Harrison only champions the cause of actors and performers so far. He refuses
to take his argument in relation to the authorship
of plays to its logical
conclusion, and to acknowledge that actors deserve a full share of copyright
protection.[85] His artistic
commitment to collaborative theatre is overridden by administrative concerns
about the practicality and viability of
such reforms. Harrison foresees that
playwrights in this country would be resistant to sharing the royalties of a
play with performers:
It's a minefield. The minute you start to
determine who was responsible for this line, or who edited or restructured that
section,
the people involved feel they deserve a share of the royalty payments
... and as playwrights have shown in this country they are
loath to allow
anyone to cut into their royalty packages, which are quite substantial - more so
than overseas.[86]
Similarly,
the actor and festival director Robyn Archer doubts whether performers will ever
receive comprehensive copyright protection
in relation to their performances.
She observes that ‘certainly no actor – for instance in an
interpretation of a David
Williamson – will ever be paid copyright in
that’. [87]
However,
there is greater support for comprehensive performers' rights beyond the
confines of mainstream theatre. For instance, the
Melbourne performance troupe
Not Yet It's Difficult (NYID) operates as a radical
collective.[88] Using the
stakeholder structure as a base, NYID divides revenue through a system of
shares. The members of the company are paid the
same base rate and additional
remuneration based on time and input. This model of theatrical production
demonstrates that it is possible
to respect the contributions of performers.
There is a need to reconsider the recognition of performers' rights in light of
the practices
of collective theatre.
The controversy over Heretic concerned the artistic design of the
production. It is worth considering what rights, if any, are held by the
artistic designer.
The designer John Senczuk was a long-time collaborator
of the director Harrison. They had worked on over 20 productions together.
The
production of the play Heretic was a difficult task because of its
peculiarities in content and form. The theatrical concept of the production was
a response to
textual elements of the play that emphasised that Margaret Mead
was the 'intellectual godmother' of the 'permissive society' of the
1960s. It
took its cue from stage directions, which called for a montage of icons and
images of the Sixties against the backdrop
of psychedelic lighting and the music
of the times. In the theatrical production of Heretic, Harrison sought
to explore the iconic status of Margaret Mead. The character assumes the
personae of public icons of the 1960s,
such as Marilyn Monroe, Barbara Streisand
and Jackie Kennedy. Lines were inserted to accommodate these personae, such as
'Happy
Birthday, Mr President'. In the visual design, Senczuk was inspired by
M.C. Esher's woodcut Metamorphose. The set and the costume design were
psychedelic, hallucinogenic in feel and 1960s in style, but heightened and
distorted because
of its dream-like state.
However, Williamson was
unhappy with this production of Heretic, because he thought that it was
unfaithful to the intentions of his script. He endorsed the criticisms of the
production as being
'intellectual cabaret' and a 'new
genre'.[89]
Senczuk defended the
design against the attacks of the playwright. He believed that the work was a
good marriage between the script
of Williamson, the dramaturgey of Harrison, and
his own theatrical and visual philosophy:
It is a nonsense to believe, as
is often the case, that the director/designer team spend their time deliberately
trying to sabotage
a production. I have to remain confident with the decisions
made in the design development period. These decisions are not made
flippantly
and risks are taken. Other times, other places, the process may be different.
I, like any other theatre worker in this
country, live and work in a theatrical
system shackled by economic rationalism. Yet there is still a determined and
conscious decision
to entertain and stimulate audiences with high quality work.
At the same time there is a need to provoke and educate audiences theatrically,
to take them into dangerous
territory.[90]
The task of
Senczuk was complicated by the evolution of the script for Heretic. He
based his decisions about the design upon an early draft of the play. The set
was already being built by the time that later
drafts of the script sought to
alter the tone and look of the play.
It is also worth reflecting that
Senczuk enjoys copyright in the artistic work of the design. It is arguable
that his economic rights
and moral rights might be violated if the playwright
Williamson sought to break down the integrity of the design without his consent
or permission.
Harrison observes that there have been several interesting
copyright disputes in respect of artistic design in the performing
arts.[91] The Tony award-winning
designer Brian Thomson had a much reported run-in with the opera director Elijah
Moshinsky.[92] He claimed that the
design for Moshinsky’s 1996 Met production of the Makropoulos Affair
– which featured a large black
sphinx – was similar to his own
design for the same opera in a 1982 Adelaide Festival production, which was also
directed by
Moshinsky. An exchange of letters followed. Moshinsky informed the
Met that no part of Thomson’s design had been used, utilised,
or copied.
However, Thomson vows that he will never work with the director again: 'He does
crowd-pleasing operas... I have no
desire to work with him
again'.[93]
There has been a
French case dealing with the moral rights of artistic designers in a dramatic
production.[94] In Leger
v Reunion des Theatres Lyriques
Nationaux,[95] the artistic
designer brought an action against a theatre, arguing that the excision of a
scene from part of an opera impaired his
moral rights. He asked for damages and
an order that the defendant re-establish the opera’s stage setting in its
entirety.
The court agreed that the stage design constituted an artistic work
in which there were moral rights but said that the composer
of the opera and its
producer had rights to control the production. However, it still found that the
producer had no right to make
a cut without the permission of the artist and
without informing the public.
The dispute over Heretic highlights how the operation of the
Copyright Amendment (Moral Rights) Act 2000 (Cth) is specific,
contextual, and contested. Comparisons between the treatment of dramatic works
and cinematographic films are enlightening.
The art forms are treated in a
radically different fashion, even though they are both collaborative ventures,
which require a substantial
investment of money. The film industry receives
special treatment under the legislation, with unique rules regarding
co-authorship
agreements, industry standards, consent and duration. In the
future, the Federal Government would be well advised to commission
reports into
the impact of copyright law reform on artistic communities. The Performing Arts
and Multimedia Library pilot project
was a promising
idea.[96] The project sought to
investigate the impact of digital rights and moral rights on performing arts
companies. Such initiatives
seem to be the way forward to ensure that copyright
legislation does not unduly hamper or harm artistic communities and cultural
production.
The conflict over Heretic presented a number of
competing visions of authorship and collaboration in dramatic works. First,
Williamson maintained that the
role of the playwright was paramount. Although
he was willing to acknowledge the contributions of other collaborators, the
writer
did not believe that these interpreters deserved copyright protection.
Second, Harrison believed that the role of the director and
the position of the
producer deserved greater legal recognition. He was also willing to countenance
limited rights for the performer.
A third, more radical view is that
recognition should be accorded to all of the collaborators in the performing
arts, because of
their respective creative contributions. It is arguable that
the authorship of dramatic works should not be limited to just the playwright,
but extended to all of the collaborators and the performers. However, it
remains to be seen whether this model will be accepted
in the performing arts,
and prove viable in the
marketplace.[97]
The
controversy is also relevant to the current inquiry of the Copyright Law Review
Committee into the interaction between copyright
law and contract
law.[98] It provides plentiful
examples of progressive agreements, which seek to overcome deficiencies and
inadequacies in copyright law
through contract law. The Williamson agreement is
a good example of private recognition of moral rights. Aspects of such
agreements
could be included in the encyclopaedia of contractual terms being
developed by the Performing Arts and Multi-Media
Library.[99] However, the dispute
also highlights the limitations of the privity of contract, and industry
practices. For instance, Harrison
found it difficult to protect the investment
of the Sydney Theatre Company in film adaptations, such as Blackrock.
There needs to be greater legislative guidance about the proper interaction
between copyright law and contract law.
[*] Matthew Rimmer, BA (Hons)/ LLB
(Hons) (ANU), PhD (UNSW), is a Lecturer at the Faculty of Law in the Australian
National University.
The author would like to acknowledge the help and
assistance of his informants, Wayne Harrison, Helen Simondson, Jo Dyer and Robyn
Archer. He is also grateful to Dr Kathy Bowrey of the University of New South
Wales, and the peer reviewer for their comments on
this
paper.
[1] D Williamson,
Heretic: Based On Life Of Derek Freeman
(1996).
[2] M Mead, Coming of
Age in Samoa (1928, republished 1973); D Freeman, Margaret Mead and
Samoa: The Unmaking of an Anthropological Myth (1983); and M Di Leonardo,
Exotics at Home: Anthropologies, Others, American Modernity
(1998).
[3] B Kiernan,
‘Whose Play is it Anyway?’, The Sydney Morning Herald
(Sydney), 6 July 1996, 33-37.
[4] B
Kiernan, David Williamson: A Writer's Career (1996)
306.
[5] D Williamson,
‘Some Like It Hot ... But I Don't’, The Sydney Morning Herald
(Sydney), 9 April 1996,
13.
[6] Ibid.
[7]
A Bennie, ‘Ungodly Row over Heretic’, The Sydney Morning
Herald (Sydney) 2 April 1996,
13.
[8] Copyright Law Review
Committee, Simplification Of The Copyright Act 1968: Part 2. Rights And
Subject Matter (1999).
[9]
Copyright Law Review Committee, Copyright And Contract: Issues Paper
(2001).
[10] J Bates, The
Genius of Shakespeare (1997); J Fuegi, Brecht and Company: Sex,
Politics, and the Making of the Modern Drama (1994); S Giles, Bertolt
Brecht and Critical Theory: Marxism, Modernity and the Threepenny Lawsuit
(1997); J Knowlson, Damned to Fame: The Life of Samuel Beckett (1996),
691-696; and R Brooks, ‘Two-Day Stage Epic Ends Hall’s Beautiful
Friendship’ The London Times (London, England), 20 January
2001.
[11] Editorial,
‘Heretic and Players’, The Sydney Morning Herald (Sydney), 10
April 1996.
[12] M Wark, The
Virtual Republic: Australia’s Cultural Wars of the ‘90s (1998)
200.
[13]
Ibid.
[14] J Bates, The
Genius of Shakespeare (1997)
82.
[15] Section 31 (1)(a) of
the Copyright Act 1968
(Cth).
[16] Correspondence
with Wayne Harrison, Director and Producer (London, 24 February 1999).
[17] Frisby v BBC
[1967], 2 All England Law Reports
106.
[18] Gilliam and others
v American Broadcasting Corporation [1976] USCA2 548; (1976) 538 F.2d 14.
[19] A Bennie, ‘Question
of Belief as Writer, Director Split over Heretic’, The Sydney Morning
Herald (Sydney), 2 April 1996,
3.
[20] W Harrison, ‘From
the Director’, The Sydney Morning Herald, The Good Weekend
(Sydney), Saturday, 27 July 1996,
8.
[21] A Bennie,
‘Question of Belief as Writer, Director Split over Heretic’, above n
19, 3.
[22] P Cochrane,
‘Wayne's Expanding World’, The Sydney Morning Herald
(Sydney), 8 May 1996, 18.
[23] B
Kiernan, David Williamson: A Writer’s Career,
(1996).
[24] David Williamson
has considered taking defamation action against Bob Ellis who claimed that the
playwright had plagiarised a line
from rival Alex Buzo, in his film,
Gallipoli, and based The Removalists on some improvised work by a
collective of actors: B Kiernan, David Williamson: A Writer's Career
(1996) 215; and B Hallett, ‘Now the Carlton Crucible Circus Is Over, On
With The Play’, The Sydney Morning Herald (Sydney), 29 April 1998,
5.
[25] D Williamson, ‘The
Australian Writer's Guild Submission On The Copyright Amendment Bill
1997’, 8 August 1997.
[26]
Commonwealth, Parliamentary Debates, House of Representatives, Hansard,
31 October 2000, 21714 (Daryl Williams,
Attorney-General).
[27] Section
191 of the Copyright Amendment (Moral Rights) Act 2000
(Cth).
[28] Section 195AN (4) of
the Copyright Amendment (Moral Rights) Act 2000
(Cth).
[29] Section 195AR
(3)(g) and s 195AS (3)(g) of the Copyright Amendment (Moral Rights) Act
2000 (Cth).
[30] Section
195AZA (3) of the Copyright Amendment (Moral Rights) Act 2000
(Cth).
[31] Section 195AW of
the Copyright Amendment (Moral Rights) Act 2000
(Cth).
[32] Section 195AM
(1) of the Copyright Amendment (Moral Rights) Act 2000
(Cth).
[33]
Attorney-General's Department, Proposed Moral Rights Legislation for
Copyright Creators: Discussion Paper
(1994).
[34] Arts Law Centre of
Australia, ‘Letter to the Federal Government’, 18 February
2000.
[35] D Williamson,
‘Some Like It Hot... But I Don't’, above n
5.
[36] Correspondence with
Wayne Harrison, above n 16.
[37]
Section 195AWA of the Copyright Amendment (Moral Rights) Act 2000
(Cth).
[38] Section 195AZA
(3) of the Copyright Amendment (Moral Rights) Act 2000
(Cth).
[39] J Eccles,
‘Heretic Preceded by a Clash of Orthodoxies’, The Sunday Age
(Melbourne), 14 July 1996,
7.
[40] Section 191 of the
Copyright Amendment (Moral Rights) Act 2000
(Cth).
[41] S Maras,
‘The Film Script As Blueprint: Collaboration And Moral Rights’,
(1999) 93 Media International Australia Incorporating Culture And Policy
145.
[42] M Cooper, ‘Moral
Rights And The Australian Film And Television Industries’, (1997) 15 (4)
Copyright Reporter 166 at
175.
[43] A Bennie, ‘Exit
Stage Writers, Pursued by Smoke’, The Sydney Morning Herald
(Sydney) 28 January 1998.
[44] P
Cochrane, ‘Wayne's Expanding World’, above n
22.
[45] Correspondence with
Wayne Harrison, above n 16.
[46]
Ibid.
[47]
Ibid.
[48] L Bently,
‘Copyright and the Death of the Author in Literature and Law’ (1994)
57 Modern Law Review
973.
[49] Kenrick &
Co v Lawrence & Co (1890) 25 QBD 99; Tate v
Thomas [1921] 1 Ch 503; and Evans v F Hulton & Co
Ltd [1923-1928] MCC 51.
[50]
Cala Homes (South) Ltd v Alfred McAlpine Homes (East) Ltd
[1995] FSR 818; Fylde Microsystems Ltd v Key Radio Systems
Ltd (1998) 39 IPR 481; and Ray v Classic FM (1998) 41 IPR
235.
[51] Thomson v
Larson [1998] USCA2 249; (1998) 147 F 3d
195.
[52] Childress
v Taylor [1991] USCA2 987; (1991) 945 F 2d
500.
[53] Staff Writer,
‘The Rent Settlement’, Talkin' Broadway, 26 August
1998.
[54] Correspondence with
Wayne Harrison, above n 16.
[55] T Kushner, Angels in America Part Two: Perestroika (1994) 150-151; S Jonas, G Proehl and M Lupu (eds) ‘Tony Kushner’s Angels’ in Dramaturgy in American Theater: A Source Book (1997) 472; and S Jonas, ‘Tony Kushner’s Angels’' in R Vorlicky (ed), Tony Kushner in Conversation (1998) 157.
[56] R Smith, 'The Appeal Brief', Transcripts from the Rent Case, <http://dramaturgy.net/rent> .
[57] S Jonas, ‘Tony Kushner’s Angels’ in R Vorlicky (ed), Tony Kushner In Conversation (1998) 158.
[58] R Kwall,
‘Author-Stories: Narrative's Implications For Moral Rights And
Copyright's Joint Authorship Doctrine’ (2001) 75 Southern California
Law Review 1, 58.
[59]
Section 191 of the Copyright Amendment (Moral Rights) Act 2000
(Cth).
[60] Senate Legal and
Constitutional Legislation Committee, Copyright Amendment Bill 1997
(1997), 9.
[61] Department of
Communications, Arts and the Information Economy, Securing The Future: The
Major Performing Arts Discussion Paper
(1999).
[62] P Cochrane,
‘Wayne's Expanding World’, above n
22.
[63] W Harrison, ‘The
Theatre of War’, The Sydney Morning Herald (Sydney), 19 December
1994, 14.
[64] W Harrison,
‘STC Boss Laments Leo’s Show’, The Sydney Morning
Herald (Sydney), 16 January 1999, 7; and W Harrison, ‘Cost of
Festivals Higher than You Think’, The Sydney Morning Herald
(Sydney), 16 January 1999,
47.
[65] B Evans,
‘Low-Risk Policy Pays For STC’, The Sydney Theatre Company,
22 July 1994, 20.
[66] B
Luhrmann, and C Pearce, Strictly Ballroom
(1992).
[67] Correspondence with
Wayne Harrison, above n 16.
[68]
T Squires, ‘Strictly Baz’, The Sydney Morning Herald
(Sydney), 27 June 1992, 33.
[69]
Correspondence with Wayne Harrison, above n
16.
[70] N Enright,
Blackrock (1996).
[71]
Correspondence with Wayne Harrison, above n
16.
[72]
Ibid.
[73] Correspondence with
Wayne Harrison, Director and Producer (London, 22 January
2001).
[74] Interview with Jo
Dyer, General Manager, Bangarra Dance Theatre (Sydney, 15 September
1998).
[75] S Browne, ‘Liz
Seeks Peace From The Storms Of The Stage’, The Sydney Morning
Herald (Sydney), Northern Herald, 23 May 1996,
31.
[76]
Ibid.
[77]
Ibid.
[78] P Cochrane,
‘Wayne's Expanding World’, above n
22.
[79] S Connor,
‘Postmodern Performance’ in Postmodernist Culture: An
Introduction to Theories of the Contemporary (1989)
134.
[80] P Cochrane,
‘Wayne's Expanding World’, above n
22.
[81] Section 248A (1) of the
Copyright Act 1968 (Cth) defines ‘performance’ as
broadly meaning a performance or an improvisation of a work, and includes the
use of puppets,
dances, circus acts, variety acts, and similar presentations and
shows. However, s 248A (2) excludes sport, news-reading and crowd participation
in performances from the definition of a
performance.
[82] Correspondence
with Wayne Harrison, above n
16.
[83] T Sowden, ‘Limits
to Film Copyright’ (1998) 3 Media and Arts Law Review 223; M James,
‘Some Joy at Last for Cinematographers’ (2000) 22 European
Intellectual Property Review 131; and T Rivers, ‘Norowzian
Revisited’ (2000) 22 European Intellectual Property Review
389.
[84] Attorney
General’s Department, Performers’ Intellectual Property Rights:
Scope of Extended Rights for Performers under the Copyright Act 1968
(1997).
[85] M Leiboff,
‘Actors, Directors and Others and Writers: Copyright Protection for
Non-Writer Contributors in Group-Devised Theatre’
(1993) Arts And
Entertainment Law Review
13.
[86] P Cochrane,
‘Wayne's Expanding World’, above n
22.
[87] Correspondence with
Robyn Archer, Actor and Festival Director (Adelaide, 11 October
1998).
[88] Interview with H
Simondson (Melbourne, 2 September 1998); and H Simondson, Performing Arts
Media Library: From Live Performance To The Digital Stage (1999),
<http://www.acmi.net.au/PAML>
.
[89]
D Williamson, ‘Some Like It Hot ... But I Don't’, above n
5.
[90] J Senczuk,
‘Heretic Row: Designer Chips In’, The Sydney Morning Herald
(Sydney), 4 April 1996, 15.
[91]
Correspondence with Wayne Harrison, above n
16.
[92] J Morgan, ‘What
the Critics Say’, The Sydney Morning Herald (Sydney), 13 June 1998,
8.
[93]
Ibid.
[94] J H Merryman,
‘The Refrigerator of Bernard Buffet’ (1976) 27 The Hastings Law
Journal 1023.
[95]
Leger v Reunion des Theatres Lyriques Nationaux [1955] 6
RIDA 146.
[96] Interview with H
Simondson, above n 88; and H Simondson, Performing Arts Media Library: From
Live Performance To The Digital Stage (1999),
<http://www.acmi.net.au/PAML>
.
[97]
Ibid.
[98] Copyright Law Review
Committee, Copyright And Contract: Issues Paper
(2001).
[99] Interview with H
Simondson, above n 88; and H Simondson, Performing Arts Media Library: From
Live Performance To The Digital Stage (1999),
<http://www.acmi.net.au/PAML>
.
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