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Protecting your rights:
Cultural protocols

Developing products can lead to creative, cultural and economic opportunities for art centres and their artists, however it is essential that artists are treated fairly.

Having a set of protocols or rules in place ensures that artwork licensing activities are conducted in a way that protects and respects artists’ rights and traditional cultural knowledge.

Indigenous Cultural Intellectual Property

Indigenous Cultural Intellectual Property or ICIP refers to the rights that Aboriginal and Torres Strait Islander peoples have over their traditional knowledge, cultural expressions, and heritage. This includes things like art, music, language, sacred sites, traditional symbols, and ecological knowledge. ICIP recognises that Indigenous communities are the custodians of their culture and should have control over how it is shared and used.

While Australian law does not yet fully protect ICIP rights, there are principles and protocols in place to ensure respect for Indigenous knowledge and cultural heritage.

Respect for Indigenous cultural rights

Every Aboriginal and Torres Strait Islander artwork carries traditional knowledge and cultural significance. If an artwork is used on merchandise, it still represents that culture and knowledge.

Art centres should only agree to reproduction licensing if they are sure the products will be produced, packaged, labelled and marketed in a way that respects culture.

When considering third-party applications to reproduce artwork on products, preference should go to those who are members of the Indigenous Art Code. Contracts should follow the best practice templates provided by the Arts Law Centre of Australia to ensure fair and ethical agreements.

Self-determination

Artists and their communities have the right to decide how their ICIP is used, including in the production and sale of merchandise.

The board (or Advisory Committee) of the art centre serves as the leadership and governance body, guiding the centre on all cultural matters. The centre should work with artists, arts workers and Elders to create a written strategy for merchandise production. This strategy must be reviewed and approved by the board.

The art centre must report to the board at least once a year on how the strategy is being implemented. Any updates or changes to the strategy must also be approved by the board.

Art centres should only approve reproduction licensing agreements that align with the strategy set by the board and as approved by Elders.

Within this framework, each artist and their community has the right to decide how their artworks are used on merchandise. Before finalising any licensing arrangement, the art centre must consult with the artist whose artwork will be reproduced to confirm they agree on:

  • The specific artwork chosen for reproduction.
  • The type of product it will appear on.
  • Payment terms and arrangements.
  • The identity of the licensee.
  • Any other important conditions.

This ensures that artists have control over how their work is used while maintaining consistency with the art centre’s strategy.

Any arrangement for the reproduction of artwork on product must, wherever practicable, include the following terms to ensure that the artist is genuinely engaged in the licensing process:

  • Approval of product mock-ups or samples prior to commercial production.
  • Approval of product packaging and labelling.

Art centres should only enter reproduction licensing agreements for specific types of products and should not grant broad copyright licenses to third parties.

If an artwork belongs to a deceased artist or an artist who is unable to give consent, the art centre must consult the artist’s family. If the family cannot be reached, the board will provide guidance.

To ensure transparency, art centres must keep written records of all consultations with artists or family members. If an artist or family member has limited English literacy, discussions about licensing must be conducted in their language with an arts worker to ensure full understanding and agreement.

Any changes or expansions to licensing arrangements such as new products or additional artworks require further consultation with the artist or their family before approval.

Cultural integrity and authenticity

Licensing agreements for artwork reproduction must respect customary laws and cultural responsibilities tied to the artwork.

Licensees cannot edit or change the licensed artwork without the artist’s approval.

To honour the artwork’s cultural origins, packaging and marketing must include:

  • The artist’s name and language group.
  • A reference to the artwork’s story.
  • Acknowledgment of the art centre, ideally with a link to its website.

This ensures that the artwork’s cultural significance is recognised and respected in all uses.

Licensees should make every effort to respect cultural protocols regarding an artist’s image if the artist passes away. While changing existing packaging or printed materials may not be possible, licensees should be prepared to remove the artist’s name and/or image from online marketing and future print runs if requested by the artist’s family.

If an artist’s artwork is being sold or promoted directly by the art centre, the centre should temporarily remove the product from its gallery shop and market stalls after the artist’s passing. The product should only be put back on display once the centre has confirmed with the artist’s family that it is appropriate to do so.