Arts Law was approached by a professional photographer who was concerned about retaining copyright in photographs that she had taken professionally. She had taken multiple photos of a friend and had given them copies to show their family. She later discovered that some of the photos had been uploaded to Facebook without her permission or attributing her as the photographer. She was very worried about the effect on her ownership of copyright in the photos and her ability to use them again in the future.
Albert Namatjira is one of Australia’s most well-known and celebrated Indigenous artists, however his family’s ability to have any legal influence over the ongoing cultural and economic management of his artworks after his death was compromised by the Public Trustee’s failure to appreciate the value and significance of copyright.
Ananguku Arts and Culture Aboriginal Corporation (Anaguku Arts) is an Aboriginal owned and governed organisation that assists the professional development of Indigenous artists. Ananguku Arts supports Aboriginal artmaking and cultural maintenance across South Australia, and helps build a dynamic arts industry in South Australia and across Australia. A particular focus is the support of Indigenous community art centres.
Senior Tiwi artist Bede Tungutalum is a painter, carver and printmaker and one of the founders of Tiwi Designs the well known Indigenous screen printing business based on Bathurst Island. In 2004, he approached Artists in the Black after seeing prints of his limited edition linocut work "Owl Man" for sale on the internet and through galleries in Australia.
Boolarng Nangamai Art & Culture Studios located on the south coast of New South Wales, and one of its unique projects is an online cultural community, in which Aboriginal artists and cultural workers working at the studio conduct online internet conferencing sessions educating subscribers about Aboriginal art and culture.
Boomalli Aboriginal Artists Co-operative Ltd approached Artists in the Black (AITB) for assistance with governance issues which were threatening the closure of Boomalli despite a history of over 20 years.
We advised a freelance sound designer/music composer on whether he could showcase or sell the music and sound he had created for an animation company to use.
Christine Tschuna is an Wirangu artist with the Ceduna Arts and Cultural Centre. In June 2006 she signed a Licence Reproduction Agreement with a company with produces postcards and tourist memorabilia. After the company stopped returning her calls or emails Christine turned to Artists in the Black for assistance. Arts Law pro bono lawyer Robert Lempens of Camatta Lempens in Adelaide offered to help Christine.
Established in 2007, the Darwin Aboriginal Art Fair is an annual cultural event showcasing visual artworks from over 40 Indigenous owned and incorporated art centres. The Fair was initially managed by an interim Steering Committee made up of representatives from ANKAAA, DESART and Indigenous art centre managers. However, following a review of their governance structure in 2010, they decided to follow recommendations to register as a not-for-profit foundation, to help support the ongoing vision and management of the Darwin Aboriginal Art Fair.
At the request of Desart, AITB undertook to assist in the preparation of standardized contracts and employment conditions for art centre staff in the Western Desert area.
Sometimes you just don't know if a contract is right for you, and this case study shows just how important it is to have your agreements checked out before you sign.
Worora man Donny Woolagoodja is a renowned artist whose giant Wandjina artwork featured at the opening ceremony of the Sydney 2000 Olympic Games. He asked Artists in the Black to help him prepare a document which would protect him from being held responsible if participants on his tours were injured and which would also enable him to restrict participants from photographing and publishing images of culturally sensitive sites.
Yuta Badayala (In A New Light) is a collaborative project between Indigenous weavers from the Galiwin'ku Elcho Island community and Mapuru and Koskela, an Australian design company. This case study looks at the processes involved in establishing a collaborative project, the protocols and the possible agreements to put in place.
For over 18 years, the Elcho Island Arts Centre has been supporting and representing indigenous artists from the local Yolngu communities on Elcho Island, Northern Territory. Traditionally, the Yolngu artists of Elcho Island have always incorporated different fauna and flora species, such as plant fibers and feathers, into their artwork. The women of the Yolngu community are renowned for their weaving skillsand create works of art woven from the fibres of the pandanus plant (pandanus spiralus), which is a species of shrubs that grows on Elcho Island.
Arts Law helps an artist assert his moral right of attribution after 20 years
Mediation as a sensible alternative to court proceedings.
Ilbijerri Theatre Company in Victoria is the longest running Indigenous theatre company in Australia creating innovative contemporary works by Aboriginal and Torres Strait Islander artists. Ilbijerri asked Artists in the Black to help clarify these issues in a way which recognized and protected the contributions of the workshop participants but also made sure that Ilbijerri had all of the rights it needed to stage a successful production for the public.
Jilalga Murray-Ranui is an Indigenous visual artist who is passionate about producing digital images, paintings, and smaller works of art inspired by the Pilbara landscape, people, animals and lifestyle
In July 2010, Jilalga was approached by Mungabareena Aboriginal Corporation (MAC) to create a large mural on a bridge. The MAC and the Victorian Department of Transport had entered into an agreement in relation to the creation of a public art work and Jilalga had been retained by MAC to do this work. She was not a party to the agreement between MAC and the Victorian Department of Transport so she was concerned about how that agreement might affect her copyright and her moral rights.
As an Indigenous artist, Jilalga receives a free subscription to Arts Law which she used to access Arts Law’s Document Review Service. Arts Law arranged for lawyers Jarod Benson and Jessica Karasinski of Minter Ellison to help Jilalga to understand the agreement.
“For me the size of the contract and the wording was very daunting. Arts Law helped me understand it. And they helped me renegotiate parts where I felt uneasy or concerned. Another concern I had was distance between all parties. I lived in Perth, the Victorian Transport department was in Melbourne, Mungabareena was in Wodonga, and then Arts Law was in Sydney. I was worried for a little while about the distance - I felt like I was just one lone artist on the other side of Australia. But it was reassuring that Arts Law made contact with some Perth lawyers to assist me. I felt good that I had local people on board to help me and that gave me a bit more confidence.”
Jilalga asked the Department of Transport and MAC to consider the amendments suggested by Jarod and Jessica. Those amendments were accepted and the contract was changed in a way that gave much greater protection to Jilalga.
The mural project http://www.abc.net.au/local/photos/2011/02/10/3135519.htm was unveiled in February 2011. Jilalga reflects on the process:
“Arts Law gives you the confidence to have your say by talking with you, then talking to the other party and negotiating on your behalf if and when you need it. By working with Arts Law, I felt reassured that my rights were worthy, and that my rights deserved to be heard and respected.
I enjoyed the process, all people involved worked positively together. I was so happy about the work I produced for the community, especially the Koorie community. The project was a success for the community, for the organisations involved, and for myself as a practising artist.”
This story demonstrates that it is important for artists to be aware of their rights and to be vigilant with agreements dealing with copyright of an artist, especially when the artist is not a party to the agreement. Artists should consider their moral rights (such as making sure they are named as the artist of the work) and should not be afraid to negotiate to protect their rights.
Further resources you might find useful:
- Arts Law’s information sheets: Contracts: an introduction
- Arts Law’s sample agreements: Public art: design and commission agreement
Artist Lawrence Omeenyo is a painter, sculptor and elder of the Lockhart River Community. He works through the Lockhart River Arts Centre. After Arts Law had worked with the Lockhart River Art Centre drafting wills for their artists, Arts Law decided to approach the art centre to see if it was possible to license one of the artist's images for Arts Law's 2010 Christmas card.
Artists in the Black client Mandy Davis, has received a settlement from a company for their infringement of her copyright and her moral rights. The case is a great example of how AITB works.
Ninuku Arts entered into a consignment agreement with an Adelaide gallery for the sale of 29 artworks by 19 of its artists. Ninuku Arts made many requests for payment for the 6 outstanding paintings, but no response was received. Artists in the Black turned to its long time supporters DLA Phillips Fox in Adelaide (now Fox Tucker Lawyers) for pro bono assistance.
Northern Editions (http://www.northerneditions.com.au/) is a print-making workshop located at the Charles Darwin University in Darwin. Since 1993, Northern Editions has been collaborating with artists to produce limited edition fine art prints and conducting printmaking workshops on campus and in remote communities with artists from across the Top End, Central Australia, the Kimberley and Queensland.
Most visual artists work towards an exhibition at a gallery which takes their work on consignment and tries to sell it on behalf of the artist. The work remains the property of the artist until it’s sold when the gallery takes its commission and pays the rest to the artist. This can work well unless the gallery encounters financial difficulties and goes bankrupt before the artist has been paid.
Whilst in prison PV had participated in a rehabilitation program and had created a painting as part of this program. PV was asked to allow his painting to be hung in a recreation area of the prison. In return PV was to receive $120 worth of "buy-ups" at the prison shop. PV never received the "buy-ups".
You can help ensure that Indigenous art and culture is respected and protected
Indigenous Australians’ art and culture is a highly regarded and much publicised feature of Australian society. Commercial operators who deal with Indigenous art, play a key role in ensuring that Indigenous art and culture is respected and appreciated, rather than exploited.
Sarrita King is a contemporary Indigenous artist registered for the resale royalty scheme. The resale royalty scheme for visual artists is a new scheme, brought in by the federal government in June 2010. Under the scheme, commercial resales of artworks must be reported and artists are entitled to a 5% royalty when their works are sold for at least $1000.
Some of the people that Arts Law and Artists in the Black have helped.
Dion Beasley is a talented young Aboriginal artist working in Tennant Creek, Northern Territory. Dion is profoundly deaf and suffers from muscular dystrophy. He has only a very limited ability to communicate. When Dion was 14, Barkly Regional Arts contacted Arts Law requesting help to establish a business structure to protect the income received for Dion.
The Tjanpi Desert Weavers are Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara women from eighteen desert communities who make baskets, sculptures, beads and beanies. In 2007, Tjanpi contacted Artists in the Black with a query about certificates of authenticity and the use by a gallery of images and biographical details about their weavers.
UMI Arts is the peak Indigenous arts and cultural organisation for Far North Queensland. It is a not-for-profit company based in Cairns and managed by an all-Indigenous Board of Directors. In January 2012, it approached Artists in the Black (AITB) for support with reviewing its employment agreements.
In 2005, reproductions of Bardayal Nadjamerrek's "Kangaroo" painting were offered for sale on the internet accompanied by statements that any sales would result in royalties being paid to the artist. Sadly, the reproductions were unauthorised and the artist had never received any royalties.
In 2010, a gallery in the Blue Mountains in NSW erected a large sculpture featuring Wandjinas, the creation spirit sacred to the Worrora, Wunumbal and Ngarinyin Aboriginal tribes in Western Australia. The Dharug and Gundungurra Aboriginal people of the Blue Mountains area were upset by the unauthorized and disrespectful appropriation of important cultural imagery.
Artists in the Black (AITB) provided legal advice to Wangka Maya, an Aboriginal language organisation in regional Western Australia.
In June 2011, Arts Law was approached by Grant Saunders aka Sonic Nomad of Sydney band Whitehouse http://whitehous.bandzoogle.com/fr_home.cfm.
Formed in 2006 and boasting an Aboriginal frontline and a Sri-Lankan rhythm section, the band won the Indigenous Emerging Artists grant in 2010 and its self-funded debut album is due for release in late 2011.
In late 2006, the Perth-based non-profit cultural organisation FORM initiated Ngurra Kuju Walyja – One Country, One People — The Canning Stock Route Project. The project began with modest aims to present an Aboriginal history of the Canning Stock Route through art and oral history and establish economic and professional development opportunities in remote communities. The project quickly grew to unexpected proportions. Within a year 110 Aboriginal artists and contributors were involved from 10 art and culture centres across 17 remote communities in the Goldfields, Pilbara and Kimberley, with a team of nine Aboriginal and five non-Aboriginal co-curators, multimedia crew and cultural advisors. The Canning Stock Route collection, which includes around 130 artworks, was defined by the curatorial team over two years and was acquired by the National Museum of Australia in December 2008.