Arts Law Information Sheet

The Visual Arts And Crafts

 

This fact sheet provides information about:

  • the nature of an artistic work
  • copyright in an artistic work
  • the rights of a copyright owner
  • how long copyright lasts
  • who owns copyright
  • using copyright: licensing and assigning
  • help with licensing
  • works of artistic craftsmanship
  • commissioned works
  • copying artistic works
  • using images of Indigenous art works
  • notices of custodial interest
  • selling online
  • sensitive material
  • bios, photos and stories
  • resources
     

In this information sheet:

  1. What is an artistic work?
  2. Is there copyright in an artistic work?
  3. What can the copyright owner do?
  4. How long does the copyright last?
  5. If I buy an artistic work from an auction, gallery or shop do I buy the copyright as well?
  6. Copyright ownership and duration
  7. Using copyright - Licensing
  8. Does the artistic work have to be of high artistic quality?
      1. Painting, sculpture, engraving or photograph, building or model of a building
      2. Artistic craftsmanship
  9. If I am commissioned to create an artistic work can I control the way the work is used by the commissioner once it is finished?
  10. Do I need the copyright owner’s permission to draw, paint or photograph their work?
  11. Do I need permission to use the images of an Indigenous artist or community?
  12. How can Indigenous custodians alert the public to their cultural connection to the work?
  13. Are there any special issues to consider before selling online?
  14. Can I include artworks in a film or broadcast without infringing the artist’s copyright?
  15. How do I organise the use of my artistic works?
  16. Sensitive material
  17. Bios, photos and stories
  18. Resources - General Information
    1. Indigenous Visual Art and Craft Resource Directory 2006
    2. National Association for the Visual Arts (NAVA) - Valuing Art, Respecting Culture
    3. Artists in the Black (Arts Law's Indigenous service) comics
    4. The Australian Copyright Council - visual arts and crafts information sheets
    5. Australia Council for the Arts Visual Arts – Protocols for producing Indigenous Australian visual arts
  19. Resources - Information about assignment, licensing, fees and royalties
    1. Australian Copyright Council
    2. Australia Council for the Arts
    3. The Australian Copyright Council
    4. Australia Council for the Arts Visual Arts – Protocols for producing Indigenous Australian visual arts
  20. Resources – Sample Agreements for the use of artistic works
    1. Art Law Centre of Australia: Image Reproduction Licence Agreement
    2. Arts Law Centre of Australia: Image Reproduction Licence for a Publication Agreement
    3. Arts Law Centre of Australia: Sample Photographer’s Release

What is an artistic work? 

Australian law relating to copyright in "artistic works" is set out in the Copyright Act.

The Copyright Act states that artistic works include:

  1. a painting, drawing (including maps), sculpture, engraving or photograph
  2. a building or a model of a building
  3. a work of artistic craftsmanship (including works of craftspeople working in many media such as silversmiths, potters, hand-embroiderers and others). The work must be aesthetically appealing (artistic) and require the special skill or knowledge of a craftsperson (craftsmanship).

Back to top

Is there copyright in an artistic work? 

In order to be protected by copyright, a painting, sculpture, engraving, drawing, photograph, building or model of a building must be original, fixed in material form and be connected to Australia. This connection means that the work must have been made by an Australian citizen or resident or a person who is a citizen of a country which is a signatory to the Berne Convention for the Protection of Literary and Artistic Works.

Further, a work of artistic craftsmanship must have the quality of artistic appeal and craftsmanship. The relevant law may require that the same person contributed to both the artistic and craft elements of the work.

Back to top

What can the copyright owner do? 

Subject to certain exceptions (mainly for fair dealing and in situations where the Crown owns copyright) the copyright owner has the exclusive right to:

  • reproduce the work in material form;
  • publish the work for the first time; and
  • communicate the work to the public.

Back to top

How long does the copyright last? 

Copyright in an artistic work or a work of artistic craftsmanship lasts for the life of the author/creator and an additional 70 years after the end of the calendar year of the death of the author. Copyright in a published artistic work generally lasts for 70 years after the work was published.

Back to top

If I buy an artistic work from an auction, gallery or shop do I buy the copyright as well? 

No. The copyright owner (usually the creator of the work) retains copyright. When you purchase an artwork, you purchase only the physical work, not the copyright in the work. As a result, purchasing an artwork does not entitle you to deal with any of the rights of the copyright owner.

Back to top

Copyright ownership and duration 

Copyright ownership and duration can be different depending on what type of artwork you create. This table provides a guide to these differences:

Copyright ownership and duration table - PDF

Using copyright - Licensing 

The owner of copyright in an artistic work has the exclusive right to exercise particular rights. These include the rights to reproduce the work (copying it), to publish the work (for example in a book or catalogue) and to communicate the work to the public (for example make it available on the Internet). The copyright owner can exercise these rights in relation to the entire work, or parts of the work, so long as the owner does not infringe the moral rights of the creator. The Copyright Act 1968 provides certain exceptions to these rights for fair use of material protected by copyright, such as for research or study.

An artistic work, in which copyright subsists, cannot be used in any of the ways that are protected for the benefit of the copyright owner without permission, unless there is an exception to copyright for a fair use. Unauthorised exercise of these rights in relation to a substantial part of the work may be an infringement of the copyright. So, a substantial part of an artistic work cannot be reproduced, published or communicated to the public without the copyright owner’s permission unless there is a fair use exception that applies to a particular use of the work.

How is permission from the owner of copyright granted? It is generally granted by an agreement to license or assign the copyright. The terms of the licence or assignment will be set out in a contract or agreement. There are a number of sample agreements that can be used by visual artists when they want to permit someone to use their artistic works.

A licence is the most common form of agreement for the use of copyright because it allows the owner to retain copyright, and allow use for certain times period, for certain purposes, certain territories and for a fee. It should generally be in writing. Assignment is a permanent transfer of the copyright and must always be in writing. See the Licensing section for more information.

Back to top

Does the artistic work have to be of high artistic quality? 

Painting, sculpture, engraving or photograph, building or model of a building 

No, the painting, sculpture, engraving or photograph, building or model of a building does not have to be of high quality to achieve copyright protection. The Copyright Act says that quality is not an issue for these artistic works.

Artistic craftsmanship 

The case of artistic craftsmanship is different. As judges have considered cases about artistic craftsmanship, they have decided that the works must have artistic appeal, must have the quality of craftsmanship, and some cases suggest that it is necessary for the same person to provide both the artistic and craftsmanship elements in the work.

If I am commissioned to create an artistic work can I control the way the work is used by the commissioner once it is finished? 

Generally, the commissioner will own the actual (physical) work, but the commissioner may not own copyright to that work. The ownership of copyright in a commissioned artwork will depend on the nature of the work and the arrangements between the parties at the time of commissioning.

If you are a self-employed artist and enter into a commission agreement to create an artistic work, you will be the copyright owner unless the works are:

  • photographs for private or domestic purposes; or
  • a portrait (painted or drawn); or
  • engravings.

In these three cases, the commissioner will own copyright. However, the creator may be able to restrict the commissioner to using the work only for the purposes that were anticipated at the time of the commission.

Back to top

Do I need the copyright owner’s permission to draw, paint or photograph their work? 

It depends on the nature of the work and the way it is displayed. When a sculpture, work of artistic craftsmanship, building or model of a building is on permanent public display it can be drawn, painted or photographed without the permission of the copyright owner.

But it is not lawful to draw, paint or photograph artworks which are part of the work on the walls – this will include public art such as murals.

Regardless of the copyright position, Indigenous protocols or customary law and practice may prohibit reproduction of Indigenous cultural material in any form. Even when Indigenous cultural material is publicly displayed, it may be displayed in a particular context, and reproducing publicly displayed Indigenous cultural material in any other context may be offensive. For example, a ritual object may be displayed for educational purposes but it is likely to be very offensive to the artist and cultural custodians to reproduce a photograph of it on a brochure, clothing, money or other use.

Back to top

Do I need permission to use the images of an Indigenous artist or community? 

It is essential to obtain permission to use the work of any Indigenous artist for any purpose. This includes their dances, songs, stories, films, sound recordings and their artistic works.

This requires consultation with the artist and the custodians of any Indigenous cultural material in the work.

In many cases artistic works and works of artistic craftsmanship will embody cultural or ritual knowledge of Indigenous people. It is appropriate practice to consult with the Indigenous people who own or are responsible for images depicting cultural or ritual knowledge when considering any use of the images. There may be more than one person, or more than one group of people to consult. They should be provided with sufficient information, in a suitable form, to make an informed decision, and enough time to discuss the request, consider the request and come to a decision. The kinds of information people may need include, who will be involved, what media will be used, whether the intended use will include wide dissemination such as transmission by broadcast or Internet, what safeguards against future misappropriation are proposed, who will be attributed for the artistic and cultural contribution, whether a fee is payable, whether royalties payable, how will they be distributed and many other issues relevant to the particular work and use. There may also be differing opinions about the proposed use and these issues.

Back to top

How can Indigenous custodians alert the public to their cultural connection to the work? 

Some years ago, lawyer Sally McCausland developed a notice which artists and custodians could place on their artistic works to notify the public, potential purchasers, or anyone wanting to use their work, that they assert their rights under copyright law and their own customary laws. Indigenous artists and custodians could insert the name of their community into the notice. The notice says:

NOTICE OF CUSTODIAL INTEREST OF [NAME] COMMUNITY
The images in this artwork embody ritual knowledge of the [name] community. It was created with the consent of the custodians of the community. Dealing with a part of the images for any purpose that has not been authorised by the custodians is a serious breach of the customary laws of the [name] community, and may breach the Copyright Act. For enquiries regarding the permitted reproduction of these images, contact [name] community.

Back to top

Are there any special issues to consider before selling online? 

The Internet has wonderful capacity to reach audiences and potential sales all over the world. But as a comparatively new technology, it is also very important to protect the integrity of the artistic work, and any cultural or ritual knowledge which may be embodied in the work. It may be necessary to ensure measures that restrict the extent to which images can be reproduced without the permission of the artist, community or copyright owner.

Technological protection measures can be used to maximise control over the ways digital images of the artwork can be viewed, copied, printed and altered. Rights Management Information may also be used. A method of tracking use is the use of digital watermarks on images posted on websites. A digital watermark is a digital signal or pattern inserted into a digital image. Some watermarks are visible and some watermarks are invisible (machine readable code).The watermark generally identifies the source of the image and is present on any reproduction of it.
Artists should be informed of these risks, and the strengths and limits of the technological protection measures and rights management information.

Back to top

Can I include artworks in a film or broadcast without infringing the artist’s copyright? 

It is unlikely that copyright will be infringed if the inclusion of an artwork in a film or broadcast is incidental. If the inclusion is not incidental, it may be an infringement of the rights of the owner of the copyright in the artwork. However it would be respectful to consult Indigenous people before filming or photographing individuals or artistic or cultural works. Indigenous individuals may not wish to be filmed or photographed or may wish to set terms for filming or photography of themselves and any artistic or cultural works.

In some areas, other laws set out terms for filming and photography. The Commonwealth Environment Protection Biodiversity Conservation Act and Regulations set out the rules for commercial photography in the Uluru Kata Tjuta National Park. All commercial film crews, still photographers, artists and sound recordists will need to apply for a permit to carry out commercial work in the Park. Commercial purposes include filming, photographing, painting, drawing or sound recording as part of trade of business, advertising projects, tour operators, commercial film libraries and other purposes. Some news and current affairs newspaper, radio reporting and filming does not require a permit, but does require a briefing from the Park Manager prior to filming. But all commercial publication of images of the Park require permission from the Park authorities prior to use or publication.

Back to top

How do I organise the use of my artistic works? 

There are two agencies which specialise in the licensing of Indigenous artistic works. They are Viscopy and the Aboriginal Artists Agency. Viscopy arranges copyright clearances and licenses for people who want to use an image of Indigenous artwork. They also provide education services to many Indigenous artists through a designated ATSI officer who travels widely. The Aboriginal Artists Agency also arranges copyright clearances and licenses for people who want to use an image of an Indigenous artwork. It is smaller than VISCOPY and is run by volunteers. Both agencies are committed to ensuring that Indigenous artists achieve returns for the use of their work, and to assisting those people who want to use the works.

Back to top

Sensitive material 

For many Indigenous people it is offensive and insensitive to portray images of people when they have passed away. This may include use of their names and their possessions. This can be important in many situations: where a gallery is displaying the work of an artist, or photographs of the artist, or biographical information about an artist who has passed away. The correct procedures should be ascertained from family or community members, or a community organisation who can advise on correct protocol.

Some objects which are sacred to Indigenous people have entered the private market as objects for sale, as a result of previous collecting practices. It may be inappropriate to engage in trade in these objects unless it is for the purpose of direct repatriation to Indigenous owners. Such practices may impact upon other trade in Indigenous material.

Back to top

Bios, photos and stories 

Indigenous artists often provide information about themselves, their arts practice, and the underlying cultural stories depicted in their works. This may be accompanied by a photo of the artist. This material should always be produced and disseminated with the consent and input of the artist because this can ensure currency and accuracy, and should avoid disclosing any private or sensitive information. Artists should be kept informed of dissemination of the material, and it should be regularly updated.

Back to top

Resources - General Information 

Indigenous Visual Art and Craft Resource Directory 2006  

The Indigenous Visual Art and Craft Resource Directory 2006 is an excellent source of information for artists and arts workers. It includes sections on Indigenous art centres, wholesalers, manufacturers and designers, public art galleries and museums, arts and cultural festivals and prizes, resources, support and advocacy agencies, online resources.

National Association for the Visual Arts (NAVA) - Valuing Art, Respecting Culture 

Artists in the Black (Arts Law's Indigenous service) comics  

The Australian Copyright Council - visual arts and crafts information sheets 

Australia Council for the Arts Visual Arts – Protocols for producing Indigenous Australian visual arts  

Back to top

Resources - Information about assignment, licensing, fees and royalties 

Australian Copyright Council  

  • Assigning and Licensing rights - Fact Sheet G024
  • Artworks: Getting Permission- Fact Sheet G086
  • Fees and royalties for use of copyright material - Fact Sheet G074

Australia Council for the Arts  

Visual Arts – Protocols for producing Indigenous Australian visual arts

The Australian Copyright Council  

Australia Council for the Arts Visual Arts – Protocols for producing Indigenous Australian visual arts  

Back to top

Resources – Sample Agreements for the use of artistic works 

Art Law Centre of Australia: Image Reproduction Licence Agreement 

This sample agreement is for use when a visual artist agrees to licence an existing visual image (such as a painting, a print, a drawing, a photograph or a still multimedia image) for multiple reproduction (such as on greeting cards, posters, t-shirts or a CD-ROM or the Internet).

Arts Law Centre of Australia: Image Reproduction Licence for a Publication Agreement 

This sample agreement is for use when a visual artist agrees to licence an existing visual image (such as a painting, a print, a drawing, a photograph or a still multimedia image) for multiple reproduction in a particular publication.

Arts Law Centre of Australia: Sample Photographer’s Release 

This sample release is for use by photographers intending to use photographs of people and property for particular purposes.

Back to top

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.

© Arts Law Centre of Australia

You may photocopy this information sheet for a non-profit purpose, provided you copy all of it, and you do not alter it in any way. Check you have the most recent version by contacting us on (02) 9356 2566 or tollfree outside Sydney on 1800 221 457.

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