Entertainment & Arts Law · Contracts, Engagements & Commissioning
Commissioning a new work: who owns it, and how to paper the deal.
Commissioning a new play, score or dance does not hand you the copyright by default. Here is how to structure the deal so the ownership matches the intention.
By Aaron Kernaghan · Brady & Associates Lawyers · 13 September 2026
This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.
Commissioning is where a producer, company or venue pays a writer, composer, choreographer or designer to create a new work. The common assumption is that paying for the work means owning it. Under Australian copyright law, that assumption is usually wrong.
Under section 35 of the Copyright Act 1968 (Cth), the author is the first owner of copyright, even where someone else pays for the work. A commissioner who wants to own the copyright must take a written assignment. A commissioner who only needs to use the work should instead take a licence. Either way, the deal has to be written down before the work is made.
The default: the creator owns it
Outside employment, and outside a narrow rule for certain commissioned photographs, portraits and engravings, paying for creative work does not transfer copyright. The playwright owns the play, the composer owns the score, the choreographer owns the fixed choreography. If nothing is agreed, the commissioner may be left with only an implied licence to use the work for the purpose it was commissioned for, and no more.
Assignment or licence
An assignment transfers ownership and must be in writing and signed by the copyright owner, as section 196 requires. A licence leaves ownership with the creator but grants permission to use the work, and can be exclusive or non-exclusive, limited by time, territory or purpose. Many creators will resist a full assignment of a signature work, and a well-drafted exclusive licence often meets a producer's real needs.
Moral rights and credit
Moral rights cannot be assigned. A commissioning agreement should include a fair consent to any acts that would otherwise infringe, and should set out exactly how the creator will be credited. This protects the production from a later dispute about attribution or changes to the work.
What a commissioning agreement should cover
Beyond ownership, a sound agreement deals with the fee and payment milestones, the delivery date and format, approval and revision rights, what happens if the work is not delivered or not accepted, future productions and any ongoing royalties, and termination. Getting these terms down early prevents the most common commissioning disputes.
Frequently asked.
If I pay for a new script, do I own it?
Not automatically. Under section 35 of the Copyright Act 1968 (Cth) the writer is the first owner. To own the copyright you need a written assignment. To use it, you need a licence.
What is the difference between an assignment and a licence?
An assignment transfers ownership and must be written and signed. A licence keeps ownership with the creator and grants permission to use the work, which can be limited by scope, time and territory.
Can I get the moral rights assigned to me as well?
No. Moral rights cannot be assigned. You can obtain a written consent to specified acts, and agree how the creator will be credited.
What if there is no written agreement?
The creator usually keeps copyright, and the commissioner may have only an implied licence to use the work for the original purpose. That is a weak position, and a common source of disputes.
Should the creator keep any ongoing rights?
Often yes. Many creators negotiate to keep copyright and grant an exclusive licence, or to receive royalties on future productions. What is right depends on the work and the deal.
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 13 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.