Entertainment & Arts Law · Intellectual Property & Copyright
Who owns the copyright in a performance, script or choreography?
Copyright in the performing arts is automatic, unregistered, and owned by default according to who created the work and how they were engaged. Here is who owns what across scripts, choreography, music and recordings.
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.
In Australia, copyright is automatic. It exists the moment an original work is written down, recorded, or otherwise put into material form. There is no copyright register and nothing to file. The Copyright Act 1968 (Cth) protects a script as a literary or dramatic work, choreography as a dramatic work, music as a musical work, lyrics as a literary work, and it protects sound recordings and films as separate subject matter of their own.
Who owns the copyright depends on who created the work and how they were engaged. The general rule in section 35 is that the author is the first owner. There are exceptions for work made under a contract of employment, and separate rules for sound recordings and films. A performance that is never fixed in material form, such as an unrecorded improvisation, generally attracts no copyright at all, although the performer may still have performers' rights.
What does copyright protect in the performing arts?
It helps to separate two groups. First, there are works: literary works such as a script or libretto, dramatic works such as a play or a piece of choreography, musical works such as a composition, and artistic works such as set and costume designs. Second, there is subject matter other than works: sound recordings, films, and broadcasts. A single production can contain many separate copyrights owned by different people at the same time.
Who owns the copyright by default?
Under section 35 of the Copyright Act 1968 (Cth), the author is the first owner of copyright in a work. The writer owns the script. The composer owns the music. The choreographer owns the choreography, once it is fixed.
There are two main qualifications. Work made by an employee as part of their job is usually owned by the employer under section 35(6). And a narrow rule in section 35(5) gives the client first ownership of certain commissioned photographs, portraits and engravings. Outside those situations, paying someone to create a work does not, by itself, transfer the copyright to you. If a producer commissions a script or a score and wants to own it, the contract must say so in writing.
Choreography and improvisation: the fixation problem
Choreography is protected as a dramatic work, but only once it is in material form. The definition of a dramatic work in section 10 includes a choreographic show if it is fixed, for example through dance notation, a filmed record, or a detailed written description. Steps that exist only in the dancers' bodies and are never recorded are not protected by copyright. A choreographer who wants to protect a work should record or notate it, and date the record.
Sound recordings of a live performance: performers as co-owners
A sound recording is a separate copyright from the music and lyrics it captures. The maker of the recording is usually the first owner. Following the Australia United States Free Trade Agreement amendments, performers can be co-owners of the copyright in a sound recording of their live performance, together with the maker. There is an important limit: where the performers are employed or paid to perform under an agreement, they usually do not obtain copyright in the recording. This co-ownership applies to sound recordings, not to the soundtrack of a film.
Assignments and licences
Copyright can be sold or licensed. An assignment transfers ownership and must be in writing and signed by the owner to be effective, under section 196. A licence gives permission to use the work without transferring ownership, and can be exclusive or non-exclusive. In practice, most disputes in the sector come from engagement contracts that are silent on copyright. Deal with ownership, assignment or licence terms expressly, before the work is made.
Devised and collaborative work
Company-devised theatre and collaborative creation raise the question of joint authorship. Where two or more people contribute to a single work and their contributions are not separate, they can be joint owners, and dealings with the work then need the agreement of each owner. A company that develops work with an ensemble should agree, in writing and early, who owns the resulting show and what happens if a collaborator leaves.
Frequently asked.
Do I need to register copyright in Australia?
No. Copyright is automatic once a work is in material form. Australia has no copyright register. Keeping dated copies and records helps prove authorship and timing if there is ever a dispute.
If I pay a writer or composer, do I own the work?
Not automatically. Under section 35 of the Copyright Act 1968 (Cth) the author is the first owner. Paying a contractor to create a work does not transfer copyright unless there is a written assignment. Employees are treated differently, as their employer usually owns work made as part of the job.
Is choreography protected by copyright?
Yes, as a dramatic work, but only once it is fixed in material form such as notation or a recording. Unrecorded steps that exist only in performance are generally not protected.
Who owns the recording of a live gig?
The maker of the recording is usually the first owner, and performers can be co-owners of the sound recording of their live performance. Performers who are employed or paid to perform under an agreement usually do not gain copyright in the recording.
How do I transfer copyright properly?
By a written assignment signed by the copyright owner, as required by section 196 of the Copyright Act 1968 (Cth). A verbal promise to assign copyright is not enough.
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.