May 2009

This information is for general guidance only; it is not legal advice.

Under Australian copyright law, you don’t need permission to include an artistic work in a film or broadcast if it is “only incidental to the principal matters represented in the film or broadcast”.

In most cases, items in the background – such as posters on walls, book and CD covers, and labels on groceries – are likely to be incidental, even if they were deliberately placed in a set.  Similarly, it’s likely that filming artworks that are included in footage as people walk through a house or gallery, or as a result of someone being interviewed in a room that has pictures on the wall, would also be regarded as incidental and would not require permission under Australian law.

However, if the works are the subject of the film – for example, you’re shooting a documentary about a painter or the subject of the film is an art collection – reproduction of the works in the film could well fall outside the exception and require permission. Similarly, permission is likely to be needed to include a 1955 or later photo of James Dean or Elvis Presley, for example, in a documentary about their lives, or in a feature film whose central theme was a person who had an obsession with such a figure.

As a rule of thumb, the more prominently an artistic work is featured in a shot, and the more closely it is related to the subject of the film, the less likely it is that filming would be regarded as “incidental”.

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