Q. Is Creative Legal Services a law firm?
A. No, we are not a law firm and we are not lawyers. Our consultants are enrolled barristers and solicitors of the High Court of New Zealand and have many years experience working in the creative sector.
Q. Can Creative Legal Services consultants take statutory declarations?
A. Yes, as our consultants are enrolled barristers and solicitors of the High Court of New Zealand, they may take statutory declarations.
Q. Are communications between Creative Legal Services and clients confidential?
A. Yes, Creative Legal Services respects your right to privacy and confidentiality. We will keep all information provided by you confidential unless you give us permission to give information about you to a third party. Communications between Creative Legal Services and you are not protected by legal professional privilege.
Q. What is Copyright?
A. Copyright is a property right that exists in certain original works of creation and which gives its owner the exclusive right to do certain things in relation to that work. Basically it means that only the copyright owner has the right to copy, publish, perform, adapt and communicate their work to the public (whether physically or digitally). No one else is allowed to exercise those rights unless they have the copyright owner’s consent or they are covered by an exemption under the Copyright Act. In New Zealand, copyright in most creative material comes into effect automatically as soon as the work is created and lasts for the life of the author plus 50 years after the author’s death.
Q. Are copyright laws in NZ the same as copyright laws overseas?
A. Not necessarily. In New Zealand, copyright law is made up by the Copyright Act 1994 and various court decisions. Although our copyright law has many similarities with the laws in other countries, there can be significant differences too, for example, in relation to copyright duration, ownership and exceptions from infringement. Generally, the law of the relevant country determines the rules that apply to the use of the material in that country.
Q. Does copyright protect everything I create?
A. Copyright protects original literary, dramatic, musical or artistic works, sound recordings, films, communication works (such as broadcasts and internet transmissions) and typographical arrangements of published editions. If the work is not original (ie it is a copy or it infringes someone else’s copyright), and not recorded in some format, then it is unlikely to receive copyright protection.
Q. How do I get copyright?
A. If the work is capable of copyright protection, then it is automatically copyright protected without need for further action. Copyright registration is not necessary, nor available in New Zealand. The moment you express your idea or concept in some fixed form so that it is an original work, copyright arises and your work will be protected. Similarly, while the symbol © is a helpful way to notify people that the work is protected by copyright, it is not necessary to get copyright protection.
Q. Do I always own copyright in my creations?
A. The short answer is no, not always. If what you have created is capable of copyright protection, you will usually own copyright in it unless: a) You create the copyright material as an employee in the course of and within the scope of your employment (in this instance your employer owns the copyright in that material); or b) If you are commissioned and paid (or there is an agreement to pay you) to make a specific work (eg take a portrait photograph, or make a computer programme) then generally the commissioner owns the copyright in the work. This rule is known as 'the commissioning rule', and will apply unless there is an agreement (in writing) stating otherwise. The commissioning rule only applies to specific types of artistic works (including photographs), computer programmes, films and sound recordings.
Q. What is the purpose of the copyright symbol ©?
A. As copyright protection is automatic, the presence or absence of the © symbol does not affect the existence of copyright over a work. It is, however, a good idea to place the © symbol on a work along with your name and date of creation, eg ©Michelangelo 2010, to let people know that the work is copyrighted, and who the copyright owner is.
Q. I have a great idea. How do I protect it?
A. Copyright does not protect ideas – it protects certain original works. If your idea is expressed in some tangible way then it is that tangible expression that receives copyright protection. If you have a great idea, but have not yet expressed it in some material form then copyright law will not be relevant. If you keep your idea in your head then it is unlikely anyone can copy it, and if you want to talk about it or share it with others then it may be a good idea to get them to sign a Confidentiality or Non Disclosure Agreement before you tell them your idea, thereby giving your idea some protection.
Q. How can I protect the title of my song, book or film?
A. In most cases, a title or name is not a substantial enough 'original work' to get copyright protection. However, you may be able to register the name or title as a trade mark, or prevent someone else using a confusingly similar name or title in the course of trade. Unlike copyright protection, trade mark protection requires a formal registration and payment of a fee. Trademarks are registered at the Intellectual Property Office of New Zealand
Q. What can I do if someone is using my work without my permission?
A. The first thing is to determine whether the use is permissible, even without your permission. The Copyright Act does not prohibit all unauthorised uses of your work and copyright is infringed only if all or a 'substantial' part of your copyright protected work is used without your permission, and none of the exceptions that are contained in the Copyright Act apply. (Part 3 of the Copyright Act deals with permitted acts in relation to copyright works and includes incidental copying, criticism, review and news reporting, research or private study, educational and archival uses). Once you have determined that none of the exceptions apply, then you should contact the person or entity responsible for the infringement (the infringer), ideally in writing. Best practice would be to write the infringer a letter (an email is fine) clearly stating your concerns and outlining your copyright claim. You should demand they immediately stop the infringing use as well as claim any damages that you have suffered, and specify a reasonable period of time for them to comply with your demands. Please contact Creative Legal Services
if you would like help writing a demand letter.
Q. Can I use images, music, articles or other materials from the internet?
A. You can’t assume that all material found on the internet is free for everyone to use as they wish. Any work that is protected by copyright in the physical world is equally protected in the digital world. Therefore, unless one of the exceptions to copyright infringement contained in the Copyright Act apply (for example you have copied the work for the purpose of criticism or review, or for research or private study, or for educational purposes) you cannot use images, music, articles or other materials from the internet without the permission of the copyright owner.
NB there are two exceptions to the above: firstly, if the copyright in the work has expired (ie the work has entered the 'public domain' as the copyright owner died more than 50 years ago) then it would be ok to use works found on the internet; and secondly, sometimes copyright owners give a licence to the world at large to use their work, most commonly under a Creative Commons licence. Please note though that most Creative Commons licences are subject to terms and conditions, including the requirement that the work be attributed to the copyright owner. If you have any doubts about your intended use and whether it is permissible, you should contact the copyright owner before using the work. Otherwise, feel free to contact Creative Legal Services
Q. Is it OK to copy 10% (or even 1%) of someone’s work without their permission?
A. As a general rule it is not ok to copy any part of someone else’s work without their permission as this could be a breach of their copyright. Although the Copyright Act states infringement can only occur if the whole or a 'substantial' part has been copied, there is no magic number that is the cut off between insubstantial and substantial. 'Substantial' refers to an important or distinctive part of the work and generally, infringement depends on the quality of what is taken, rather than the quantity. A part has been deemed substantial if it is an important or essential part of the material, and could arguably apply to a title or short phrase if important enough.
Q. What rights do I have in a sound recording of my performance?
A. Musicians, including session musicians, are generally regarded as performers under the Copyright Act, and therefore may have certain 'performers’ rights' and 'moral rights' in their work which are set out in the Act. In most cases the session musicians will have agreed to receive a fee in lieu of royalties and have given the recordings owner a broad licence to use the performance contained on the recordings. If you have any further questions about whether your performer or moral rights have been infringed, please contact Creative Legal Services
to request more information.
Q. What does 'fair use' mean?
A. 'Fair use' does not apply in New Zealand, but is a concept from the United States that deems certain uses of copyright works permissible without further authorisation from the copyright owner. It is a more flexible, open-ended concept than the narrow 'fair dealing' exceptions that are contained in the NZ Copyright Act which is limited to uses for the purposes of review, criticism, news reporting, education, libraries and archiving.
Q. What are 'moral rights' and do I have any?
A. 'Moral rights' are personal rights that an author or creator of a work has in their work. Moral rights arise automatically and last as long as copyright, ie 50 years after the death of the author. However unlike copyright, moral rights cannot be assigned or transferred, and even after your death they remain a part of your estate. The Copyright Act identifies four moral rights namely: a) the right of attribution, ie to be identified and named as the author of your work; b) the right against false attribution, ie the right to prevent others from being identified and named as the author of your work or you being credited as the author of someone else's work; c) the right of integrity which is the right to protect your work from derogatory treatment; and d) a limited right of privacy for the subjects of some photographs and films.
Q. What can I do if a magazine has not credited me as the author of a photograph they have published?
A. Under the Copyright Act you have a moral right of attribution in relation to your photograph. Unless there is some good reason in the circumstances for the lack of credit, or if you have clearly consented to the photograph being published without a credit, then the magazine has infringed this right. You should send the magazine a letter of demand (an email is fine) asking them to remedy the situation by republishing it with a credit to you, and/or whatever other remedy makes the most sense in the situation. If they fail to do so, or if you would like help with your letter of demand you can contact Creative Legal Services
Q. What is a Creative Commons licence?
A. Creative Commons is an organisation that provides a nonexclusive licensing system that allows creators or copyright owners to grant others a licence to use their work as long as certain conditions are met. There are four main types of Creative Commons licences: a) Attribution, ie you allow any use of your work as long as you are attributed; b) No Derivative Works, ie your work may be used except in a subsequent derivative work and again only with attribution; c) Non-Commercial, ie you allow any use of your work except a commercial one and only with attribution; and d) Share Alike, ie you allow any use of your work provided any derivative work is made available under the same licence, and again with your attribution. See here for more information on Creative Commons licences and how to apply a creative commons licence to your own work. It is important to consider the terms and conditions carefully if you are thinking about applying a Creative Commons licence to your work. Remember there are also alternatives to Creative Commons licences. Please contact us
to help determine whether a Creative Commons licence is the best option for your work.
Q. What are 'clearances' and how do I get them?
A. A documentary, film or other multimedia work usually incorporates several types of subject matter protected by copyright or other rights, such as a script, music, artworks, performers, actors or models. The expression 'clearance' refers to any permission the producer should seek in order to use those materials if others own copyright or other rights in them. Many film festivals, funding bodies and distributors require clearances as part of the 'chain of title'. You should ensure that the person or organisation giving the clearance actually owns the copyright or has the relevant rights to be cleared and the authority to clear them. You should get all clearances in writing. This will help you prove you have received them. Check out SPADA resources
here or contact Creative Legal Services
Q. Will the subject of my photograph acquire rights in the photograph?
A. In New Zealand, the 'commissioning rule' contained in the Copyright Act may mean that the person 'commissioning' the taking of a photograph is also the first copyright owner of that photograph. Furthermore, even if the subject does not own the copyright they may still have certain privacy rights in the photographs under the Copyright Act, such as the right not to have copies of the photograph issued to the public. Both of these circumstances are best provided for in a contract or release agreement to ensure both photographer and subject are clear on who owns which rights. See AIPA
for sample release agreements, or please contact Creative Legal Services
if you would like us to review your documents.
Q. What is chain of title?
A. In the film industry, the expression 'chain of title' refers to the documents that evidence the production company having all relevant rights to use any included material (such as music, artworks, locations, subjects and models), that is needed to make and screen the film. A producer will need these rights before they can enter into agreements for funding, distribution and other exploitation. For more information and samples of some of the types of agreements that will be needed see SPADA
. Please contact us
if you require assistance with chain of title documentation.
Q. Can I take photographs or film in public places?
A. The Copyright Act specifically provides that representing buildings, sculptures or other works of artistic craftsmanship that are permanently displayed in pubic spaces is not a breach of copyright. However, there are potentially other legal issues such as moral rights which you may need to consider before reproducing someone elses copyright material, even if permanently displayed in a public space, and so you may want to consult with the copyright owner, or contact us
if you require assistance. NZIPP
can provide samples of property releases if necessary.