Adaptations, translations and derivative works.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

A lot of creative work builds on work that already exists. A company stages a novel. A translator brings a foreign play to an Australian audience. A musician writes a new arrangement of an old song. Each of these is an adaptation, and each one engages the rights of the person who owns the original work. Getting the permissions right at the start is what keeps a production safe and lets the new creator own what they make.

This note explains how the Copyright Act 1968 (Cth) treats adaptations, translations and derivative works. It covers what counts as an adaptation, why making one needs the owner's permission, who owns the copyright in the new work, how moral rights apply, and what happens when the original is out of copyright. It is written for people in the performing arts who want to adapt existing material or who are being asked to license their own.

What is an adaptation under the Copyright Act?

The word adaptation has a defined meaning in section 10 of the Copyright Act. For a literary or dramatic work, an adaptation includes a translation of the work, a version of a non-dramatic work in a dramatic form, and a version of a dramatic work in a non-dramatic form. So turning a novel into a play is an adaptation, and so is translating a script into another language. For a musical work, an adaptation means an arrangement or transcription. A new arrangement of a song is an adaptation of that song.

The definition is wider than many people expect. It is not limited to a straight translation or a note-for-note arrangement. A version that keeps the story and the characters but changes the form, from page to stage, from one language to another, from one instrument to another, is an adaptation. If what you are making is recognisably a new version of someone else's work, you are likely in adaptation territory.

Making an adaptation is the owner's exclusive right.

Section 31 of the Act lists the exclusive rights of the owner of copyright in a literary, dramatic or musical work. One of those rights is the right to make an adaptation of the work. Another is the right to do, in relation to an adaptation, the things the owner can do with the original, such as reproduce it, publish it and perform it in public. So the owner controls not just the original but the act of adapting it, and the use of the adaptation once it is made.

The practical result is simple. If you translate a play, arrange a song or dramatise a novel without permission, you have exercised a right that belongs to the owner, and you have infringed copyright. That is so even though you have added your own skill and effort to the new version. Your contribution does not cancel the owner's right. It sits on top of it.

Is there a fair dealing exception for adaptation?

No. The fair dealing exceptions in the Act, such as those for research or study, criticism or review, and parody or satire, allow limited uses of a work in defined circumstances. They do not provide a general exception for making an adaptation. There is no provision that lets you translate, arrange or dramatise a work in copyright without permission simply because the result is new or creative. If you want to adapt a work that is still in copyright, the safe path is a licence from the owner.

Does the adaptation right apply to art, film and sound recordings?

The adaptation right applies to literary, dramatic and musical works. It does not apply in the same way to artistic works, films or sound recordings. Changing an artwork, re-cutting a film, or altering a sound recording is analysed as reproduction, that is, as copying the whole or a substantial part, rather than as adaptation. The distinction matters for sampling and remixing. Taking part of a sound recording and reworking it is a question of whether a substantial part has been reproduced, and often involves two separate copyrights, one in the underlying musical work and one in the recording itself.

Who owns the copyright in a translation or new arrangement?

A translation, a dramatisation or a new arrangement can attract its own copyright, as long as enough independent skill and effort went into making it. The translator or arranger owns copyright in that new material. But this new copyright is a separate layer that sits above the copyright in the original. It does not displace the original, and it does not give the adaptor the right to use the original. To make and exploit the adaptation lawfully, the adaptor still needs a licence from the owner of the underlying work.

So an adaptation usually involves two sets of rights. The owner of the original controls whether the adaptation can be made and used at all. The adaptor owns the new material they contribute. A licence should deal with both, by granting the right to adapt and by making clear what the adaptor may do with the result.

Moral rights and derogatory treatment.

Permission to adapt is not the end of the inquiry. The author of the original work has moral rights, which are personal to the author and cannot be assigned. One of them is the right of integrity, the right not to have the work subjected to treatment that is prejudicial to the author's honour or reputation. An adaptation that distorts or mutilates the original can breach that right even where the adaptor holds a copyright licence. A well drafted agreement deals with this by obtaining the author's consent to the specific treatment, and by addressing attribution, so the author is properly credited on the new version.

What about works that are out of copyright?

Copyright does not last forever. For most works the term is the life of the author plus seventy years. Once that term has expired the work is in the public domain and can be adapted freely. That is why a company can stage a play by Shakespeare, or adapt a nineteenth century novel, without a licence. One caution applies. A modern translation, edition or arrangement of an old work may itself be in copyright, even though the underlying work is not. If you want to use a particular translation of a public domain play, check whether that translation is still protected before you rely on it.

Practical steps before you adapt.

Start by identifying the owner of the copyright in the work you want to adapt, which is not always the author. Get a written licence that grants the right to make the adaptation and sets out what you may do with it, whether that is staging, recording, streaming or publishing. Deal with moral rights by seeking the author's consent to the treatment and agreeing on credit. Record your own contribution, so your new copyright is clear. And if the original may be old enough to be in the public domain, check the position before you assume you are free to proceed. A short piece of advice at the start is far cheaper than a dispute once the show has opened.

Frequently asked.

What counts as an adaptation under Australian copyright law?

Section 10 of the Copyright Act 1968 (Cth) defines adaptation. For a literary or dramatic work it includes a translation, a dramatic version of a non-dramatic work, and a non-dramatic version of a dramatic work. For a musical work it means an arrangement or transcription. Turning a novel into a play, translating a script, or arranging a song are all adaptations.

Do I need permission to translate a book or a play?

Yes. The right to make an adaptation, which includes a translation, is one of the owner's exclusive rights under section 31. Translating a work in copyright without permission infringes copyright, even though the translation involves your own skill. You need a licence from the owner of the original.

Is there a fair dealing exception for making an adaptation?

No. The fair dealing exceptions, such as those for research or study, criticism or review, and parody or satire, do not provide a general right to adapt a work. There is no exception that lets you translate, arrange or dramatise a work in copyright without permission. A licence from the owner is the safe path.

Who owns the copyright in a translation or arrangement?

The translator or arranger can own copyright in the new material, if enough independent skill and effort went into it. That copyright is a separate layer above the copyright in the original. It does not give the right to use the original, so the adaptor still needs a licence from the owner of the underlying work to make and exploit the adaptation.

Can I adapt a work that is in the public domain?

Yes. Once copyright has expired, usually the life of the author plus seventy years, the work is in the public domain and can be adapted freely. Be careful though, because a modern translation, edition or arrangement of an old work may itself still be in copyright even if the original is not.

Can an adaptation breach the author's moral rights?

Yes. The author of the original has a right of integrity, which protects against treatment that is prejudicial to the author's honour or reputation. An adaptation that distorts or mutilates the work can breach that right even if you hold a copyright licence. Seek the author's consent to the treatment and agree on proper credit.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 1 October 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

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