Arts Law Information Sheet

Copyright Licensing for Art Centres & Intellectual Property Licensing Toolkit

 

This information sheet explains how art centres can systematically manage copyright licensing requests for the use of artists’ work and describes the various sample agreements contained in the Art Centre Intellectual Property Licensing Toolkit. It can be used in conjunction with the suggested Copyright Licence Fee Schedules (only available in the IP Licensing Toolkit)

In this information sheet:

  1. Why Use a Collecting Society When You Can Do This Yourself?
  2. Copyright Collecting Societies - Why You Still Need Them
  3. Art Centre Services
  4. Fee Waivers - When It's Right and When It's Not
  5. Licensee Discounts
  6. Print Licensing
  7. Merchandise Licensing
  8. Online Licensing
  9. Architectural Licensing
  10. In-House Licensing - When the Art Centre Licenses from the Artist
  11. Appendix A

This information sheet is included in the Artwork Intellectual Property Licensing Toolkit. You can purchase the full toolkit with all the agreements mentioned in this information sheet here.

Why Use a Collecting Society When You Can Do This Yourself? 

Many art centres register their member artists with one or more collecting societies for all copyright licensing matters.

In Australia, Viscopy and Aboriginal Artists Agency (AAA) provide voluntary copyright licensing services. Any public institution, government body, gallery, publisher or corporation that wants to reproduce a visual artwork in circumstances which require the permission of the artist can obtain an appropriate licence from those collecting societies if the artist is one of their members. The collecting society negotiates a licence and collects a licence fee. It takes a commission from that fee then sends the remainder to the artist. The fees are usually standard charges that don’t necessarily take account of the value of the work. Often the licensee still needs to approach the art centre anyway to obtain a high resolution copy of the artwork. The collecting society does not necessarily consult the artist before saying yes to licensing requests.

Martumili Artists has been doing its own licensing for its member artists for some time. That gives it greater control over the type of licensing arrangements that the artists’ work is used in, opportunities to earn additional income for project management and to negotiate different rates for different circumstances which take into consideration the benefits to the profile of the artists and art centre from certain licensing opportunities. It has also found that licensees feel much more comfortable dealing with the organization that directly represents the artists. The art centre can package licensing arrangements with opportunities to meet the artists and can provide photo opportunities, artist biographies and suggest creative licensing strategies.

Martumili Artists uses the best practice licence agreements developed by Arts Law and has generated significant additional income for the art centre and the artists through its licensing activities.

This package is developed jointly by Martumili Artists and Arts Law. It contains basic licence templates and suggested fee structures for licensing project management and artist copyright fees.

Copyright Collecting Societies - Why You Still Need Them 

While art centres may manage voluntary copyright licensing for their member artists, it is still essential to register artists with the copyright collecting societies which have been appointed by the Australian Government to collect resale royalties (Copyright Agency) and statutory copyright royalties (Copyright Agency and Screenrights). You can also appoint Viscopy or AAA as your agent to liaise with Copyright Agency and/or Screenrights in relation to statutory royalties but that results in substantially greater commission being deducted from those royalties before any payment is made to the artist.

In addition, there are some types of voluntary copyright licensing which are best managed by Viscopy or AAA, rather than by arts centres directly. And of course, if an art centre does not wish to manage voluntary licensing at all, then registration of member artists with Viscopy or AAA is still a sensible strategy to maximise potential licensing revenue to artists.

These collecting societies are discussed in the following.

1. Copyright Agency – Statutory resale royalties

Copyright Agency is responsible for collecting and distributing to artists royalties for commercial resales of artworks for $1,000 or more (inc. GST) (the ‘resale royalty’). Generally, the seller, the buyer and the art market professional involved in a commercial resale of artwork are jointly liable to pay the royalty.

While an artist does not need to be a member of Copyright Agency to receive payments from the artists’ resale royalty scheme, registration makes  it is easier for Copyright Agency  to contact the artist if it has a payment for the artist.

2. Copyright Agency – Statutory copyright royalties for educational and government use

Copyright Agency also collects and distributesroyalties for the reproduction (copying) and communication of published material (in hardcopy or print form and online or digital form) by educational institutions, Federal, State and Territory governments and agencies and organisations assisting people with intellectual or print disabilities.

Membership of the Copyright Agency is free. For further information see Copyright Agency’s website.

3. Screenrights – Statutory copyright royalties for art works in film or TV broadcasts

Artists should be registered with Screenrights if their artistic work is used in a film or television broadcast on Australian or New Zealand television.  Membership will ensure that an artist receives any statutory royalties due where a film or television program incorporating the artist’s work is copied, communicated online or retransmitted as follows:

·         Where the film or television program is copied from television, or communicated online to staff and students, by an Australian or New Zealand educational institution (schools, TAFEs and universities).

·         Where the film or television program is copied from television by State and Federal government departments.

·         Where a free to air broadcast is simultaneously retransmitted in Australia by pay TV, mobile phones, IPTV and other services that retransmit free to air broadcasts.

For copying, broadcasting and retransmission outside of Australia and New Zealand, Screenrights can collect royalties on the artist’s behalf from collecting societies in certain countries in Europe, North America, South America and Africa.

Membership of Screenrights is free.  For further information see the Screenrights website.

4. Viscopy or AAA - Voluntary (non-statutory) copyright royalties

There are a number of types of voluntary copyright licences where it doesn’t make sense for the art centre to do the licensing work. Such licences are best managed by Viscopy or AAA and include:

·         Auction houses negotiating catalogue licences with auction houses.

·         Overseas licensing – distributing royalties collected by overseas collecting agencies. Digital archiving by collecting institutions and private collections.

If you intend to use Viscopy or AAA for the above services only, the membership application will need to be restricted accordingly. You should therefore complete the Viscopy or AAA registration process by including a statement which limits the licence to:

“Licences entered into by auction houses; licences in respect of digital archiving by collecting institutions and private collections; and overseas licensing.”

On the Viscopy Membership Application this wording can be inserted as clause 3(d). The AAA membership agreement is not available online however a similar limitation can be included when joining AAA.

It is important to note that the Viscopy licence is for an exclusive world-wide licence to collect remuneration on the artist’s behalf. Once Viscopy has been appointed, neither the artist nor the art centre can directly negotiate any licensing arrangements which fall within the scope of the rights given to Viscopy.

For further information see the Viscopy website and the AAA website.

Art Centre Services 

The art centre can approach licensing for its artists in two ways:

a.     By acting as the artist’s agent for all copyright licensing which is not managed by a collecting agency in which case the art centre would enter into licensing agreements with third parties in its capacity as agent – the artist does not need to sign those agreements; or

b.    By representing the artist in negotiations but each contract will need to be signed by the artist directly. The art centre is NOT a party to the contract.

Given that many Aboriginal and Torres Strait Islander artists who belong to community art centres have limited business skills, and often also low literacy levels, the preferred course may well be for the art centre to act as the artists’ agent for copyright licensing. If so, it is important to have clear authority from the artist. If the art centre uses Artists in the Black template Indigenous Artist and Art Centre Agreement then that membership agreement authorises it to execute copyright licence agreements on behalf of the artist. This kit contains a sample Artist/Art Centre Agency Agreement (in progress) which is a copyright agency agreement between the artist and art centre for use where copyright licensing management is not already covered in the art centre’s membership agreement with the artist. The agreement provides for a 25% commission to the art centre which the art centre may deduct from any copyright licence fees it negotiates on behalf of the artist. This is the same as the commission that is charged by Viscopy.

The 25% art centre commission covers the art centre’s work:

a.             negotiating the licence with the licensee;

b.            preparing and executing a copyright licence agreement with the licensee;

c.             where the licensee has not already identified the artwork it wishes to use itself, selecting 3 images for submission to the client (either one image by 3 different artists or 3 artworks by the client’s nominated artist);

d.            provision of a high resolution digital image of the selected image;

e.             provision of an artist’s biography and artist photo which can be used in any accompanying or promotional activities associated with the licensed product or licensed publication.

Where the client wishes to see additional images, the art centre may charge an additional fee. The commission does not cover graphic design or project management services. If the licensee wants the art centre to provide such services, the art centre will charge a separate fee.

Appendix A is a template information sheet which can be posted on the Art Centre’s website or sent to any third parties requesting permission to reproduce member’s artwork.

Our copyright licences:   

The sample copyright licences contained in the Art Centre IP Toolkit are best practice agreements developed by the Arts Law Centre of Australia which comply with the Indigenous Art Commercial Code of Conduct and the Australia Council protocols for Indigenous visual arts. If the art centre has its own template agreements, Artists in the Black recommends submitting those agreements to the Arts Law Centre for a best practice review (included in an Arts Law subscription) and discussing any changes which Arts Law recommends in order to meet best practice standards for such agreements with Indigenous visual artists. This process can take up to three weeks so please allow for that in planning. Similarly, if the licensee has its own agreements, Arts Law will review those on behalf of the artist under its Document Review Service (free for Indigenous artists)

A separate copyright licence is not required for promotional activities by galleries exhibiting works from the art centre for sale on commission. A licence to reproduce the artworks in catalogues and to promote the exhibition is generally expressly or implicitly included in the art centre’s consignment and exhibition agreements. The art centre can use Artists in the Black template Indigenous Art Centre and Gallery Consignment Agreement.

Fee Waivers - When It's Right and When It's Not 

There will be occasions where it would be in the interest of an artist to waive fees for a copyright licence such as where the purpose of the reproduction is to promote the art work (to sell the art work), or promote the artist or otherwise build the artist’s reputation. Examples where it may be appropriate to waive a fee include where a licensee uses the image:

·         On art exhibition brochures, invitations and catalogues, promoting an exhibition in which the artist’s work is featured.

·         On the artist’s biography created by licensee to be used in any accompanying or promotional activities associated with the artist’s work.

·         In articles, editorial content and advertisements which promote the artist or the artist’s work or an exhibition in which the artist’s work is featured (both print media and online).

·         On a gallery’s website to promote the artist.

·         In a non-commercial archive and non-lending reference or database associated with the exhibition.

An artist may also wish to waive a fee where the use of the image is for charitable or fund-raising purposes or where it promotes Indigenous Communities or programs.

On the other hand, if the licensee wishes to use the image to earn revenue for itself, then there should not be a fee waiver. For example, coffee table books about art or exhibition postcards sold in a gallery shop. In addition, you may wish to charge a licence fee for use of an image in a gallery’s image database. Artists in the Black suggests careful considering whether a licence fee may be appropriate for promotional items whether or not for sale and whether or not associated with an exhibition (eg give away bookmarks, mugs, keyrings) Such use may be a potential source of income for the artist. 

Ultimately, every proposed use should be considered to determine whether or not the promotional benefit to the artist justifies waiving a fee. In all situations, there should be proper attribution of the artist (including of relevant Indigenous language groups or communities) and copyright notices.  

Licensee Discounts 

The licence fees suggested in this kit are generally comparable to those charged by collecting societies with a range of discounts for certain categories of licensees. Table 1 of the Copyright Licensing Fee Schedule included in the Intellectual Property Toolkit suggests a range of discounts that are suitable for different classes of licensees. For example, State government agencies and departments are offered a 20% discount from the base rate and public collecting institutions a 50 % discount. The largest discount offered to third party licensees is 60% to local Indigenous non-government organizations working within the art centre’s own community. Table 1 sets out the relativities between different licensees and these apply across all licensing activities unless otherwise stipulated. Where a ‘minimum fee’ is payable, there is no discount below that amount.

Art centres may not only license images of its artists’ artwork but also often license photographic images of the artists and art centre activities. While most licences for artwork reproduction include a licence to reproduce a photo of the artist and an artist biography to accompany the use of the artwork, clients often seek additional photos or wish to use art centre photos in publications about Indigenous communities or programs. If artwork does not feature prominently in the licensed photo, then the licence will be directly between the art centre (as owner of the copyright in the photo) and the client. In that case, the whole fee is payable to, and income for, the art centre. the whole fee is paid to the art centre.

However, where an artwork is a principal focus of a photo (for example, a photo of two artists working collaboratively on a large work which is practically completed and shown in full), Artists in the Black suggests that any photo licence fees be shared equally between the art centre as copyright holder of the photographic image and the artist or artists whose works appear in the photo.

Print Licensing 

There are a myriad of possibilities for using artwork to earn copyright licensing fees for reproduction in print materials. Examples include licensing for commercial sale such as greeting cards, licensing for corporate promotional purposes and images reproduced in coffee table books about art.

Table 2 of the Copyright Licensing Fee Schedule sets out suggested copyright licence fees for image reproduction in print materials. It applies to reproductions of artwork and has a separate column for licensing fees concerning art centre photos depicting artwork in a context.  All prices are exclusive of GST.  The kit contains a sample contract Indigenous Artwork Reproductions Licence for a Publication (Print).

The minimum charges apply to all licensees. If the licensee discount would result in an amount below the minimum charge, the minimum charge applies.

Merchandise Licensing 

Artwork can be licensed for reproduction on a range of products for commercial sale such as t-shirts, wallets and scarves. Table 3 of the Copyright Licensing Fee Schedule sets out suggested licence fees differentiating between merchandise for commercial sale, and merchandise for non-commercial or promotional purposes. There is no licensee discount on merchandise for sale EXCEPT for local Indigenous NGOs who receive a 50% discount.

Artwork can also be used to introduce a graphic theme promoting an event or program by using it to decorate corporate gifts or promotional items which are given to attendees. Licensee discounts apply to licenses for such promotional merchandise.

Minimum fees apply to all merchandise licences.

Arts Law has a sample Image Reproduction Licence for Merchandise. If the merchandise will be manufactured and sold by the art centre itself then the Artists in the Black sample Indigenous Artwork Reproduction Licence for Merchandise (Art Centre) is more appropriate.

Online Licensing 

Artwork can be licensed for use online in a variety of ways. Public galleries may wish to show their art collections online, government agencies and corporations may want a banner or theme for their website, many print publications are also published online and, increasingly businesses want to sell their products online by showing pictures of licensed merchandise or the artwork on which it is based.

Many licences already include an incidental licence for online promotion and do not require a separate online licence: for example, online use incidental to partnership projects (included in partnership project agreement), website use as part of branding package, online promotion of exhibitions featuring the sale of works from the art centre.

Table 4 of the Copyright Licensing Fee Schedules sets out suggested licensing fees where the primary use of the licensed image is in a digital or online publication – such as a website advertisement or the cover of an e-book.

There is no fee charged in respect of images appearing in articles and editorial content in online publications promoting the art centre.

The kit contains the Artists in the Black sample Indigenous Artwork Reproduction Licence for a Publication (Digital).

Architectural Licensing 

Aboriginal artworks can be integrated into public spaces, external hardscape design, building exteriors and interiors and fitouts. An artwork may be enlarged and reproduced over a large area or reproduced several times to cover an area.

Table 5 of the Copyright Licensing Fee Schedules sets out suggested licensing charges. Copyright licences for this type of reproduction are not subject to any licensee discount (same rates for all clients); however the suggested fee structure assumes that the art centre will categorizes each artist into one of five categories depending on the current market value for their work. There are five different rates from the highest rates for the artists with the most established reputations to a lower rate for the emerging artists.

These rates apply to two dimensional reproductions. For three dimensional reproductions, individual pricing would need to be negotiated.

For exterior licensing Arts Law’s sample Copyright Licensing Agreement may be appropriate. For soft furnishings, the kit contains Artists in the Black sample Indigenous Artwork Reproduction Licence for fabric.

In-House Licensing - When the Art Centre Licenses from the Artist 

A community owned Indigenous arts centre operates for the benefit of the artists and acts as their agent in negotiating sales and building their reputations and the reputation of the art centre as a place for high quality art. Often it uses images of artwork for that purpose. It doesn’t usually pay copyright licence fees for those uses – art exhibition invitations, promotional articles in magazines, images on its website.

However whenever the art centre uses artwork images in merchandise which it offers for sale, it is best practice to pay copyright licence fees. The kit contains the Artists in the Black template Indigenous Artwork Reproduction Licence for Merchandise (Art Centre).  In addition, if an artwork is created for use as the art centre’s logo or trade mark, the artist responsible should be paid. The kit includes a template Image Reproduction Licence for a Business Logo for an Aboriginal Art Centre.

Table 6 sets out the recommended fees payable by the art centre to its artists for commercial uses of their work. The whole fee is paid to the artist with no commission to the art centre. Generally it is about 20% of the base rate.

 

Appendix A 

*[INSERT ARTS CENTRE LOGO AND NAME]*

 

USING IMAGES OF OUR ARTISTS’ ARTWORKS

 

ABOUT US

*[Insert information (about a paragraph) covering:

  • History of the arts centre and its remote location.
  • Description of the arts centre, referring to it being community operated.
  • The arts centre’s support of artists including the services and resources it provides to its artist members and its important role in generating income for the artists.
  • Description of the Indigenous community and its art represented by the arts centre.]*

 

THE ARTIST’S COPYRIGHT

Copyright subsists in the images of our members’ artworks. Our Indigenous artists’ copyright is a very important source of income for them, in particular income generated from reproductions of their artworks.  It is important that this copyright is respected. Dealing with an image without the authorisation of its owner is a serious breach of relevant customary laws and may also be a breach of the Copyright Act 1968 (Cth) and other laws.

All uses of an image, including uses to promote the artist or his/her work, requires the artist’s consent. Examples of use of an image include, but are not limited to, use on merchandise, on promotional material such as gallery brochures and invitations, in catalogues, in books, on book and DVD covers, on cards, or on a gallery’s website.

 

INDIGENOUS CULTURAL INTELLECTUAL PROPERTY

The artwork of the artists of this art centre incorporates traditional stories and cultural knowledge. The artwork is created in accordance with cultural protocols. In addition to copyright, those protocols must be respected. It may be that the artwork you are interested in is not available for commercial reproduction because of its cultural significance.

 

OBTAIN A LICENCE

Should you wish to use (including reproduce) an image registered with us (outside of the general exemptions under the Copyright Act 1968 (Cth)), it will be necessary for you to enter into a written licence agreement and pay a licence fee. In limited circumstances licence fees may be waived.

*[INSERT NAME OF ARTS CENTRE]* is authorised to grant copyright licences on behalf of its artist members and has a formal licensing policy in place.

If you are interested in using images of our member’s works do not hesitate to contact us *[insert contact details]*. We are happy to talk to you about your proposed use.

TO PURCHASE THE ARTWORK IP LICENSING TOOLKIT CLICK HERE

 

            

 


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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