Negotiation

  1. Information for Indigenous artists
  2. Information for commercial operators
  3. Resources

Information for Indigenous artists

Negotiation is a discussion intended to produce an agreement or to resolve disputes in order to satisfy various interests.

Artists must keep in mind that, during negotiations, they are one of the parties. As one of the parties, they need to ensure that they express any disagreements or ask for modifications of any unsatisfactory terms. In an arts context, the parties are likely to have a relationship after the negotiation phase so it is important to keep this in mind.

Most of the time, commercial operators will provide artists with a pre-written document. In this case, you are still able to negotiate. Don’t rush to sign the document.

Below are some helpful tips for negotiation:

  • Be professional
    Separate the person from the problem or the issue you are discussing. Leave your emotions out of it.
  • Be focused
    Focus on what it is you want to achieve and what your interests are. Try to focus on the positives rather than the problems. Be specific about what you want. Try to see the other point of view (without necessarily agreeing to it).
  • Be creative
    Think of the possibilities and try to come up with alternatives that may be a good outcome for everyone. Look for mutual gain and the benefits for everyone involved.
  • Be aware of you rights.

  • What are the rights I am giving away and what are the rights I keep?
  • What is the duration of the agreement?
  • Who am I giving my rights?
  • What area can these rights be used in?
     
  • Find out about the person you are negotiating with.
    It is useful to know as much as possible about the person you are dealing with and for them to find out about you. If you can establish a relationship based upon respect and understanding this will help your dealings with each other in the future.
  • Read any documents carefully and make sure that you understand everything.
    In a legal document, you will find legal vocabulary which you may not understand. In law, each legal word has a specific meaning and implied consequences. So ask for explanations.
  • Have a look to see if there is any Indigenous heritage or ICIP clause in the document.
    Due to the absence of Australian legislation protecting all aspects of ICIP, it is important to include clauses in agreements which specifically protect Indigenous heritage.
  • If you want to be paid, check that the amount of the fees or the royalties are fair.
    You are entitled to a reward for your work and should ensure that the fees or the royalties agreed are fair. Inform yourself of the current industry rates.
  • Get legal advice on agreements.
    The Arts Law Centre of Australia may assist you to understand the proposed agreement.

Negotiation is also used in the process of mediation. Mediation is a form of alternative dispute resolution which aims is to resolve disputes between two or more parties by negotiating a solution which is acceptable for the parties. Arts Law has a mediation service.

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Information for commercial operators

Commercial operators should ensure they do not take advantage of their position in their dealings with Indigenous artists. Commercial operators should endeavour to make sure they use effective communication with Indigenous artists, especially where English is their second language. It is important to ensure that both parties contribute to the negotiation. This means the commercial operator follows a process that allows the artist to have a say. As a commercial operator, make sure that Indigenous artists understand how their intellectual property rights are being used. It is important that commercial operators use translators when required. Commercial operators should adhere to the standards which are set out in the Indigenous Australian Art Commercial Code of Conduct. If you are operating outside the visual arts and crafts area this may still provide a useful guide. Otherwise you should be mindful of the various Indigenous protocols available to provide assistance in your dealings with Indigenous arts sectors.

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Resources

Arts Law Centre of Australia:

Artist-gallery checklist

This checklist covers many of the issues which need to be considered and decided on by artists and galleries when negotiating their exhibition arrangements.

Music management checklist

This checklist outlines issues which musicians and bands need to consider before entering into a management agreement. It is recommended for use in negotiations, before artist and manager sign a written agreement.

Music publishing checklist

This checklist outlines the basic concepts of music publishing agreements. Music publishing is one of the most complex areas of the music industry. Music publishers are an integral part of the contemporary music industry as they act as an interface between songwriters or composers and the rest of the music industry.

Music recording agreement guide

This guide outlines the basic concepts of a recording agreement. It explains the different types of recording contracts and briefly states the formalities of forming and negotiating a deal with a record company. The checklist also has a glossary of common terms which will help you understand what is being offered in a recording deal.

Mediation service

This information sheet explains what mediation is and its strengths as well as describing the Arts Law's mediation service.

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