Arts Law Information Sheet

Working Artists – Copyright, Employment, Residency, Commissions And Other Engagements

 

This fact sheet provides introductory information on issues for working artists to consider, from copyright to payment, working conditions, income tax and GST.

In this information sheet:

  1. Copyright
  2. Employment
    1. Resources: Sample agreement
      1. Artist in Residence Agreement - Arts Law Centre of Australia
    2. Resources: Case Study
      1. UMI Arts: Creating Fair Employment Agreements
  3. Terms of commissions of artwork
    1. Resources: Sample Agreement
      1. Design and Commission Agreement - Arts Law Centre of Australia
      2. Public Art: Design and Commission Agreement - Arts Law Centre of Australia
  4. Agreements between artists and art centres or galleries
    1. Resources: Sample agreements with galleries
      1. Artist-Art Centre Agreement - Arts Law Centre of Australia
      2. Artist–Gallery Agreement - Arts Law Centre of Australia

Copyright 

It is important that artists are aware of the way in which the ownership of copyright will be affected by the conditions of employment. This is a general list and it does not include all circumstances or types of creative expression. It is important to get advice from a qualified legal advisor to clarify copyright ownership when undertaking paid artistic work.

  • If you create your work, whether as a hobby or you are a self employed artist, you are probably the owner of the copyright in your works;
  • If you are creating artistic work as part of your employment, your employer is likely to own the copyright in your work, unless you have an agreement that states that you own the copyright;
  • If you are commissioned to create certain types of work, the person who commissioned the work will own the copyright unless you have an agreement to the contrary. If there is agreement regarding the use of the work, the artist can restrain the person who commissioned the work from using the work for a purpose other than the use that was agreed. However, copyright to some commissioned work is always owned by the artist.

Viscopy and National Association for the Visual Arts (NAVA) provide a useful source of guidance for copyright fees for visual artists.

A useful guide to copyright fees for artists, illustrators, writers, prose anthologies, freelance writers, broadcasters, photographers and artists can be found in NAVA’s publication The Code of Practice for the Australian Visual Arts and Craft Sector.

Employment 

Important employment issues for artists to consider include employment conditions, payment and copyright ownership.

NAVA provide a useful schedule of fees for artists in their publication The Code of Practice for the Australian Visual Arts and Craft Sector. The schedule sets out approximate rates of pay for trainees, a standard rate of pay and rates for senior practitioners in the three main categories of artist employment – studio artist, public artist and new media artists.

A guide to minimum hourly rates and conditions for book illustrators are available from the Australian Society of Authors.

Minimum rates for newspaper cartoonists are available from the MEAA website.

The Australian Writer’s Guild provides members with information on minimum rates for writers for television, theatre, film and radio.

Indigenous people working in the arts, media and cultural industries can register with the Black Book Directory. It is a very useful source of Indigenous expertise for projects and employment.

Resources: Sample agreement 

Artist in Residence Agreement - Arts Law Centre of Australia 

This sample agreement is for use when artist/writer/craftsperson has been granted permission to use a studio or other type of residency accommodation, whether live-in or not, and often pursuant to a funding grant.

Resources: Case Study 

UMI Arts: Creating Fair Employment Agreements 

Terms of commissions of artwork 

A commission is an agreement made by an artist to create a new work for a person, company or organisation. For example, a visual artist might be commissioned to create a design for a pamphlet, poster or for permanent display in a building; or a composer might be commissioned to write the score for a film. There are many types of commissions.

One of the most important aspects of the commission is to clarify and confirm the agreement between the creator and the commissioner. This agreement should be in writing and include: the nature of the work, the date for completion, the amount to be paid, a statement that the artist retains copyright, and the artist’s attribution as author of the work. Any attribution for reliance on Indigenous community materials should also be included. The agreement should further cover: insurance of the work, arrangements for transport of the work and maintenance of the work, as well as the consequences of unforseen events such as:

  • what if the work takes longer to complete than expected?
  • how will the artist get the commissioner to approve draft proposals for the work?
  • does the commissioner need to come and approve the work as it develops?
  • what happens if the commissioner does not like the work?
  • if copyright must vest in the commissioner, can the artist use the work in his/her portfolio or other promotion?

It is important to set these issues out in a written, signed agreement. If all goes well, a detailed, written agreement will have provided the necessary guidance to the artist and commissioner. If, however, things do not go according to plan, both the artist and the commissioner will be guided by the agreement to sort things out.

Resources: Sample Agreement 

Design and Commission Agreement - Arts Law Centre of Australia 

This sample agreement can generally be used when an artist is commissioned to create an artwork.www.artslaw.com.au

Public Art: Design and Commission Agreement - Arts Law Centre of Australia 

This sample agreement should be used when a visual artist is commissioned to design and create a public artwork.
 

Agreements between artists and art centres or galleries 

Different art centres have different practices for working with artists. Some of the different practices of art centres include different rules about who pays for materials, and when artists get paid (for example when they bring their work to the art centre or when their work is sold). While the arrangements might change from art centre to art centre, it is always important that both the artist and the art centre understand what they can expect from each other. It is also very important that art centres have written agreements with artists, so that they have written permission to act on behalf of the artists, and deal with artists’ works for sales, insurance and freight arrangements.

One of the most important agreements artists can make is with a gallery where a long term commitment is envisaged. Under these arrangements, the artist and gallery hope to grow their relationship and their success. It is important to set the terms of this relationship in writing and to consider the terms carefully.

A national Indigenous Art Code (Code) has been published, providing detailed information for art centres on their arrangements with Indigenous artists.

The Arts Law Centre of Australia makes a sample Artist-Art Centre Agreement available, which complies with the requirements of the Code.

Further, the Code of Practice for Australian commercial galleries and the artist they represent is endorsed by the Australian Commercial Galleries Association, NAVA and the Australia Council for the Arts. It is available on all their websites.

Resources: Sample agreements with galleries 

Artist-Art Centre Agreement - Arts Law Centre of Australia 

This sample agreement is for use between an Indigenous art centre and an Indigenous artist. It complies with the requirements of the Indigenous Arts Commercial Code of Conduct.

Artist–Gallery Agreement - Arts Law Centre of Australia 

This sample agreement is for use when an artist wishes to enter into a long-term relationship with a gallery, where the gallery acts as an agent for the exhibition, sale or promotion of the qrtist’s works. This agreement partly incorporates the concept of consignment, but also provides for a work-by-work basis. 

Need more help?

If you have questions about any of the topics discussed above please contact Arts Law.

Disclaimer

The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.

While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet.

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The Arts Law Centre of Australia has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.

Australian Government - Australia Council for the Arts