A major problem in the Indigenous arts industry is the reproduction of Indigenous art and designs without permission from the artist. Businesses seeking to make products that include Indigenous artwork should use licensing agreements to ethically and respectfully engage with Indigenous artists.
Licencing arrangements allow Indigenous artists to authorise others to reproduce their work whilst they retain the copyright. It can enable the artist to gain exposure and develop ongoing relationships. The rights to use or reproduce artwork on products should be done in a mutually beneficial manner that upholds the rights of the artist.
What is involved in a licence agreement?
A licence agreement is made when a copyright owner enters into a contract with another person to authorise them to use their artwork. Indigenous artists can give manufacturers permission to use their artwork by granting them licensed rights to use the copyright in their works in a written licence agreement. Licence agreements are an effective model for businesses seeking to engage with Indigenous artists or use their artistic works, providing terms and conditions that, when respected, facilitate respectful and ethical engagement.
The granting of a licence is a contract, and like other contracts it can be oral, implied or written. However, it is recommended that copyright licences be in writing to avoid future misunderstandings.
The licence agreement should set out the Terms and Conditions of the licence, including:
The scope of the licence: What does the licence agreement cover in terms of products? The products that the artwork can be reproduced on should be clearly understood.
Payment or royalties: How will the artist be paid? If the work is commissioned, professional fees can be paid up front or on completion and delivery of the work; royalties can be paid to artists based on the number of products produced or sold.
Duration: What is the specific time period the licence is granted for? For instance, an artist can grant another person the rights to reproduce their artistic works on t-shirts for 3 years. After the 3 years, the licensed rights cease.
Territory: Where are the rights permitted? e.g. limited only to Australia.
Moral Rights: The artist’s right of integrity and attribution should be covered in the agreement. Have you discussed any changes to the artwork with the artist? How are the moral rights of the artist being upheld? Licence agreements should include clauses that deal with the moral rights of the artist.
Attribution: Attribution or credit clauses are included to ensure that the artist’s name, clan group and any other information requested is included alongside each reproduction of their work, compliant with their moral rights under the Copyright Act 1968 (Cth).
Indigenous Cultural and Intellectual Property (ICIP) Rights: Where the artistic work contains Indigenous cultural expressions that are the collective heritage of a clan, clauses should be implemented to ensure that ICIP rights are protected. E.g. Ensuring the integrity and authenticity of the artwork is upheld; facilitating consultation and consent; and benefit sharing. (For more information on ICIP see our blog Rights to Culture).
Termination rights: How can the licence agreement be terminated? Who has the right to terminate the licence and for what reasons?
Case Study: Frillneck Australia
Frillneck Australia is a 100% Indigenous-owned business based in Darwin, Northern Territory, owned by Steven Ludwig. They wanted to develop a range of micromesh throws and frillneck hats that incorporate the artistic designs of four Aboriginal and Torres Strait Islander artists. Terri Janke and Company assisted by drafting an art licence agreement that protects the interests and rights of both parties. The licence sets out the terms and conditions for the reproduction of the artwork on these products. The featured artists are Lulu Coombes, Les Huddleston, Norma Chidanpee Benger and Eddie Janama Kitching.
Image Source: Frillneck Australia Facebook page
How can Terri Janke and Company help?
Terri Janke and Company can assist both businesses and Indigenous artists in:
Drafting licence agreements for commercial use such as clothing, furnishing and other products;
Providing advice on licence agreements given to artists by manufacturers;
Assisting with the negotiation of rights and agreements.