Empirical Studies of Moral Rights in Cases of Dramatic and Musical Works

Abstract

This is panel paper jointly submitted by Brent Salter and Alan Hui.Part 1 (Brent Salter): In the past two decades some of the most notable legal disputes in the Australian theatre community have involved issues of moral rights: the Heretic dispute at Sydney Theatre Company between former Artistic Director Wayne Harrison and the iconic Australian playwright David Williamson, the dispute between Company B Belvoir and the estate of Samuel Beckett during the 2003 Sydney Festival and a heated exchange between American composer and lyricist Stephen Sondheim and Australian musical theatre company Kookaburra over a Sydney production of Sondheim’s Company. All three disputes received considerable attention in the press but ultimately settled before formal litigation was commenced. Despite integrity issues being a central aspect of these notable disputes, the application of moral rights to theatre received no attention during the moral rights debate in the late 1990s and has generally been uninfluential on theatre practice over the last decade since the introduction of moral rights into Australian law in 2001. As one practitioner has suggested, - [T]o actually take recourse in moral rights sounds to me like the production is in deep trouble and often the deep trouble can have to do with things that are beyond the notion of moral rights. Certainly in my role I can’t see it making any difference to my practice.‖ The paper ethnographically examines the relationship between the theatre community and the moral rights copyright regime that governs this community and provides reasons, based on the qualitative research, why moral rights amendments have had such a limited influence on Australian theatre practice since their introduction in 2001.Part 2 (Alan Hui): It could be said that the introduction of an Australian moral rights regime in 2000 was timely for authors of musical works, given the explosion of uses in musical works since. Yet, authors of musical works have yet to use moral rights amendments to protect their works. The integrity of an estimated 3500 musical works was not questioned when sampled by The Avalanches in their album Since I Left You, a rare case of a diligent sample clearance. When a substantial part of an iconic piece, the Australian Broadcasting Corporation News Theme, composed by in the Hunter Valley of Australia by renowned composers Tony Ansell and Peter Wall Marion Sinclair, was reproduced in a remix without attribution, no action was taken. In fact, it remains that the only Australian case regarding music and moral rights involves a the Apotheosis remix of the O Fortuna Chorus from Carl Orff’s Carmina Burana that was created prior to the 2000 moral rights regime. This paper presents a comparative case study of different examples of music sampling and considers how moral rights affect the creative practice of sampling artists.