AACHWA has prepared some drafting notes and example copyright and moral rights clauses, which may be useful in negotiating agreements with third-party manufacturers in Australia.

These clauses do not deal with engaging a third party to sell or promote the manufactured goods. They are provided by way of example only and do not constitute legal advice.

You should obtain independent legal advice prior to entering into any agreement to manufacture products that reproduce your artwork.

There are a number of community legal centres, including Arts Law through their Artists in the Black program, that may be able to provide you with the necessary assistance or make a referral to a law firm who is qualified to assist you.

Product Manufacturing Agreements

Drafting Notes – Intellectual Property (IP), and Indigenous Cultural and Intellectual Property (ICIP) Rights, Example Clauses

General Notes: The Terms and Conditions of any agreement should precisely set out:

• the term of the licence (how long it lasts for)
• the country in which the products may be manufactured
• the particular artwork(s) to be licensed (referred to below as the [Licensed Artwork])
• the types of products to be manufactured
• how the [Licensed Artwork] can be used in relation to those products. Ideally, the agreement should depict what the product is intended to look like
• the quantity of products to be manufactured
• any approval process for the final design of the product
• audit rights so that you have a way of checking that the manufacturer is complying with the agreement
• the circumstances in which a party may terminate the licence

[Highlighted Terms] in the example clauses below indicate terms that might be substituted for other words, depending on the language that is used in the Manufacturer’s Agreement.

The clauses below are intended for 2D reproductions, such as where a painting is reproduced on a shirt. If the products will reproduce an artistic work in a 3D shape or configuration, you should first seek advice as to whether to obtain registered design protection.

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Copyright licence	Example clause
Copyright owners have the exclusive right to reproduce their copyright work (e.g. an artwork), and can provide a licence to another person that permits them to reproduce the copyright work.	In consideration for the [Licence Fee], the [Artist] grants the [Manufacturer] a non-exclusive licence to reproduce the [Licensed Artwork] on [Products], in accordance with and subject to the terms of this agreement.
Where you are engaging a manufacturer to apply your artwork to a product, you will need to provide them with a limited, non-exclusive licence to reproduce the artwork.	Any reproduction of the [Licensed Artwork] must be as depicted in this agreement (or, if there is no depiction, an exact copy of the original artwork), except for any changes that have been explicitly approved by the [Artist]. Any modifications or alterations to the [Licensed Artwork] in relation to a product must be submitted to the [Artist] for review and written approval prior to implementation. The [Artist] reserves the right to reject any proposed changes that do not meet their standards for the [Licensed Artwork].
You need to ensure that other terms of the agreement specify what form the [Products] will take and how the [Licensed Artwork] will be used on that product.	For the avoidance of doubt, the [Manufacturer] may not otherwise reproduce, publish, or communicate to the public the [Licensed Artwork] without the express licence of the [Artist].

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Copyright warranty

Example clause

You may be asked to warrant that: you own the copyright in the artwork the artwork is original and does not infringe the copyright of any third party. It is reasonable for a manufacturer to request these warranties. If these matters are not true, you should not provide the warranties, and ought to seek legal advice before proceeding to manufacture products that apply the artwork. If the Manufacturer’s Agreement does not contain these warranties, it is not necessary to add them.

The [Artist] warrants that: a. they are the owner of the copyright in the [Licensed Artwork]; and b. the [Licensed Artwork] is an original work that does not infringe the copyright of any third party.

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Moral rights consent

Example clause

Moral rights include the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work, and the right not to have authorship of a work falsely attributed, as created by the Copyright Act. You may be asked to provide a moral rights consent. If the Manufacturer’s Agreement does not contain a moral rights consent, it is not necessary to add one.

The [Artist] acknowledges that the application of the [Licensed Artwork] to any [Product] that they have approved in accordance with the terms of this agreement will not constitute derogatory treatment of their Artwork, or otherwise contravene the Artist’s Moral Rights.

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Reference to the Artist	Example clause
This clause provides you with the right to limit how the Manufacturer refers to you.	The [Manufacturer] may not make or authorise any public statement relating to the production of the [Products] for the [Artist], or refer to the [Artist], without receiving prior written approval of the [Artist].

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Indigenous Cultural and Intellectual Property

Example clause

You may be asked to provide a warranty in respect of certain matters, relating to secret or sacred knowledge. If the Manufacturer’s Agreement does not contain any warranty relating to Indigenous Cultural and Intellectual Property, it is not necessary to add one.

The [Artist] warrants that: a. the [Licensed Artwork] does not contain any secret or sacred knowledge of any Indigenous peoples; and b. to the extent the [Licensed Artwork] encompasses any customary knowledge of the [Artist’s] community, the use of the [Licensed Artwork] to manufacture the [Products] is permitted by the community’s custodians, and the [Artist] has sought and obtained all necessary consents from those custodians to permit the production of the [Products].