Co-production agreements between companies and venues.

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 co-production is an arrangement where two or more organisations join to produce a work together. It might be two theatre companies, a company and a presenting venue, or a local company and an interstate or overseas partner. Each party puts something in, whether cash, a venue, rehearsal space, personnel, or an existing right, and they share the cost, the risk, and the return. The attraction is that a show which neither party could fund alone becomes possible, and the audience and the touring reach grow. The risk is that a handshake between two companies who trust each other turns sour when the money, the credit, or the future of the show is in dispute.

There is no Australian statute written for co-productions. The deal is governed by the ordinary law of contract, supported by copyright law for the ownership questions and by the state Partnership Acts for a risk that many parties do not see coming. A written co-production agreement is what turns a shared intention into enforceable terms, and the care taken in drafting it is usually repaid many times over when the show succeeds and the parties have to work out who is entitled to what.

Is a co-production a partnership?

This is the question that catches parties out. Under the Partnership Act in each state and territory, a partnership is the relationship that exists between people carrying on a business in common with a view to profit. Two companies who join to produce a show for a shared return can fall within that definition without ever using the word partnership. That matters, because partners are liable for the debts of the partnership, and each partner can bind the others. A co-production that is treated as a partnership can leave one company exposed to debts run up by the other.

For that reason most co-production agreements say expressly that the arrangement is not a partnership, and that neither party is the agent of the other or can bind the other without consent. A clause of that kind is not conclusive on its own, because a court looks at the substance of the relationship rather than the label, but it is strong evidence of what the parties intended, and it is paired with terms that keep the two organisations separate on debts, staff, and authority. A party going into a co-production should understand whether the structure it is signing creates joint liability, and should not assume that calling it a co-production avoids the point.

Who owns the copyright in a co-produced work?

Copyright is often the most valuable thing a co-production creates, and it is the term most likely to be left vague. Under the Copyright Act 1968 (Cth), copyright in a new work first belongs to its author, or to the author's employer where the work is made in the course of employment. A co-production usually brings together several contributions, a script, a score, choreography, a design, and each of those can carry its own copyright with its own owner. Unless the agreement says otherwise, the parties can end up as joint owners of some elements and sole owners of others, which makes any later use of the show hard to clear.

A co-production agreement should set out who owns the copyright in the production and its elements, and how each party may use them. Any assignment of copyright has no effect unless it is in writing and signed by or on behalf of the owner, under section 196 of the Copyright Act 1968, so a party that expects to own or share a right needs that recorded in the agreement, not assumed. The moral rights of the individual creators sit alongside ownership and cannot be assigned, so the agreement deals with them by consent rather than transfer. How ownership and transfer work in more detail is set out in the note on assigning and licensing copyright and the note on who owns the copyright in a performance, script or choreography.

How are costs and income shared?

The financial terms are the heart of the deal. The agreement should record what each party contributes, whether that is a cash investment, the use of a venue, in-kind support such as rehearsal space or marketing, or an existing right in the work. It should then set out how income is shared once the show earns, and in what order money is applied. A common structure recovers agreed costs first, then splits any surplus between the parties in stated proportions, often the same proportions as their contributions. Box office income, touring fees, and any later licensing of the show can each be treated differently, and the agreement should say so.

The parties should also decide who carries a loss. A show that does not recoup leaves a shortfall, and the agreement should say whether that falls on one party, is shared, or is capped for each. Where a venue is one of the parties, the deal often blends a co-production share with the venue's ordinary hire and box office terms, so the two sets of numbers need to be reconciled in one place. How venue terms work on their own is covered in the note on venue hire agreements.

Who controls the creative and business decisions?

Two organisations producing one show have to agree on how decisions get made, and a co-production that is silent on control invites deadlock. The agreement should say who has the final say on the creative side, such as casting, the director, and the design, and who controls the business side, such as the budget, the marketing spend, and any tour. Sometimes one party leads on creative matters and the other on presentation and box office. Sometimes decisions above a set value need both parties to agree. What matters is that the split is written down before the show is in production, not argued about once rehearsals have started.

Credit and billing belong in the same part of the agreement. Both parties will want their name on the show, and the order, size, and wording of the credit can matter to funding, profile, and future work. The agreement should fix how each party is credited on the marketing, the program, and any recording, and how the show is described when it tours or is licensed on. A clear credit clause avoids a common and bitter dispute at the point where the show finally succeeds.

What happens when the show has a future life?

A successful co-production rarely ends with its first season. It may tour, transfer to another city, be remounted years later, be filmed, or be licensed to another producer. The agreement should say who holds the rights to those future uses, how a decision to exploit the show further is made, and how the income from it is shared. A party that contributed to the original production will usually expect a continuing share in what the show earns later, and that expectation needs to be recorded, because a right that was never written down is very hard to assert once the parties have moved on.

The agreement should also deal with what happens if the co-production ends early, if one party withdraws, or if the parties fall out. Terms on termination, on what each party may do with the work afterwards, and on how any dispute is resolved, whether by negotiation, mediation, or a nominated forum, keep a breakdown from becoming a stalemate that freezes the show. Where public funding is involved, the conditions attached by the funding body, such as Creative Australia or a state arts agency, sit on top of the agreement and need to be met by both parties.

Does the Australian Consumer Law apply?

Where a co-production agreement is a standard form contract and one of the parties is a small business, the unfair contract terms provisions of the Australian Consumer Law can apply. Since 9 November 2023 those provisions reach standard form contracts with a small business that employs fewer than 100 people or has an annual turnover under 10 million dollars, and a term that is unfair can be declared void, with penalties now available for using one. Many arts organisations fall within that description, so a party presenting another with a take it or leave it co-production document should not assume every term will hold.

That said, a genuine co-production between two organisations of similar standing is usually negotiated rather than imposed, which takes it outside the standard form concept. The practical lesson is the same either way. Read the terms, negotiate the ones that matter, and do not sign a document simply because the other party says it is standard. A term that is one sided may not survive if it is ever tested.

What should each party settle before signing?

A short list repays attention. The structure should be clear, including whether the arrangement is a partnership and who is liable for debts. The contributions of each party should be recorded, in cash and in kind. The copyright and the future exploitation rights should be allocated in writing, with any assignment signed. The cost recovery and income split should be set out, along with who carries a loss. Control of the creative and business decisions should be divided, and the credit fixed. Termination, dispute resolution, insurance, and any funding conditions should be covered.

A co-production is one of the most productive relationships in the arts, and a well drafted agreement lets two organisations do together what neither could do alone. The document is worth the time it takes, because the questions it answers, who owns the show, who is paid, and who decides, are exactly the questions that become expensive when the show is a hit and nothing was written down. Advice before signing, rather than after the dispute, is the cheapest protection either party has.

Frequently asked.

What is a co-production agreement in the arts?

It is a contract between two or more organisations, such as two companies or a company and a venue, to produce a work together and share the cost, risk, and return. Each party contributes cash, a venue, personnel, or an existing right, and the agreement sets how income and losses are split, who owns the copyright, who controls the creative and business decisions, and how the show may be used in the future. There is no single statute for co-productions in Australia, so the agreement itself governs the relationship.

Is a co-production a partnership?

It can be, and that is the risk parties often miss. Under the Partnership Act in each state and territory, a partnership is the relationship between people carrying on a business in common with a view to profit, and a co-production can fall within that definition without using the word. Partners are liable for the partnership's debts, so most co-production agreements state expressly that the arrangement is not a partnership and that neither party can bind the other. A court looks at the substance, so the terms must match the label.

Who owns the copyright in a co-produced show?

Under the Copyright Act 1968 (Cth) copyright first belongs to the author of each element, or to the author's employer where the work is made in employment, so a co-production can create a patchwork of owners across the script, score, choreography, and design. The agreement should allocate ownership and use expressly, and any assignment of copyright has no effect unless it is in writing and signed by or on behalf of the owner under section 196. Moral rights cannot be assigned and are dealt with by consent.

How are costs and income shared in a co-production?

The agreement records what each party contributes, in cash and in kind, and sets how income is applied, commonly recovering agreed costs first and then splitting any surplus in stated proportions. Box office, touring fees, and later licensing can each be treated differently. The parties should also agree who carries a loss if the show does not recoup, whether it falls on one party, is shared, or is capped, so a shortfall does not become a dispute.

Who controls the decisions in a co-production?

That is set by the agreement. It should say who has the final say on creative matters such as casting, director, and design, and who controls the business side such as budget, marketing, and touring. Sometimes one party leads on creative and the other on presentation; sometimes decisions above a set value need both to agree. Credit and billing should be fixed in the same place, because the order and wording of each party's credit often matters to funding and profile.

Does the Australian Consumer Law apply to co-production agreements?

It can. Where the agreement is a standard form contract and one party is a small business that employs fewer than 100 people or has an annual turnover under 10 million dollars, the unfair contract terms provisions of the Australian Consumer Law can apply, and an unfair term can be declared void, with penalties available since 9 November 2023. A genuine co-production negotiated between two organisations is usually outside the standard form concept, but a take it or leave it document should not be assumed to hold.

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 25 September 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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