Overview

If you are an artist or art centre thinking about working with a business to put your artwork or stories on products, it is important to make sure that everything is clear and agreed to in writing. Contracts are a tool that can be used to protect your rights and make sure your culture is respected.

When entering into a licensing arrangement, it is important to clearly specify which artwork is covered. This includes details such as the artist’s name, title of the piece, catalogue number, medium, and a small image for reference.

Licences should apply to specific products only and be limited in duration—ideally no more than 5 years. The licence should only grant permission to reproduce, publish or communicate (electronically transmit or make available online) a copy of the work in particular ways; it should not involve assigning ownership of copyright. Copyright ownership and licensing should be kept separate from, and can exist notwithstanding any sale of the physical artwork.

You might receive compensation for a licence in the form of either or both of a fixed upfront payment and royalties (an ongoing payment made by the licensee).

Royalty payments should reflect the number of products made or sold or the revenue generated, be calculated regularly (eg monthly), and paid within 30 days. A royalty rate based on a percentage of the wholesale or retail pricing is one way to calculate fair compensation.

Before any products are manufactured at scale, artists should have a chance to review samples and mock-ups of packaging and labelling. This ensures there is an opportunity for proper review and discussion before significant costs are incurred by manufacturing products.

Unless they would prefer otherwise, the artist must always be credited on packaging and promotional materials, and there should be clear acknowledgement of Indigenous Cultural and Intellectual Property (ICIP) and the traditional custodians of any traditional knowledge incorporated into the artwork.

Avoid broad waivers of the artist’s moral rights, and make sure no changes are made to the artwork without their approval. Artists should also have the right to end the licence if the agreement is breached, and any sell-down period should be limited in time (e. no more than 12 months after termination).

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Choosing the right products

Before signing a contract, ask:

• What types of products would you feel proud to see your artwork on?
• Are there some products that aren’t appropriate for your work or your community’s stories?
• Do you have your own rules or does your community have rules about where and how artwork can be reproduced?

Make sure the contract says exactly what products the artwork will be used on, and get advice if you’re unsure.

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Using artwork and stories the right way

There are a lot of things to think about when it comes to how your artwork or stories are used. Be clear about:

• Which artworks or stories can be used and which ones can’t.
• Whether it’s okay to use existing artworks, or if you’re being asked to create something new.
• If any part of the artwork or story needs to be changed before it goes on a product.
• If permission is needed from Elders, family, or community, not just the artist.
• Whether it’s okay to use the work of an artist who has passed, and who needs to be consulted about this.

All of these things should be discussed before the contract is written—and included in it.

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Recording consent and respecting protocols

It’s also important to make sure everyone working on the project understands what’s expected. Ask:

• Is there a process for deciding what’s appropriate before production starts?
• How will your consent be recorded? Will you get a copy of the signed contract?
• Is there any paperwork that sets out the rules for how the artwork or story will be used?
• Does the business understand your community or cultural protocols?

Taking time to talk through these issues and getting everything in writing helps protect artist’s artwork, culture and rights. And by following these steps, art centres and businesses can build fair, respectful and transparent partnerships with Indigenous artists.