Case Studies: A snapshot of Arts Law’s Impact

A wooden bench covered with buckets of paint brushes
Photo by Khara Woods on Unsplash
A wooden bench covered with buckets of paint brushes
Photo by Khara Woods on Unsplash

Susan Schmidt: What can you do if your artwork is used without your permission?

Susan Schmidt is a Queensland-based fine-arts painter, graphic designer and award-winning illustrator. Her works have featured in numerous exhibitions within Australia and overseas, including the Chelsea International Fine Art Collective in New York in 2012 and Contemporary Istanbul in 2014. Susan approached Arts Law in 2014 after she saw one of her artworks reproduced on a book cover without her permission. Susan had created the artwork in question as a commission over twenty years previously and was very surprised to see it on a book cover in her local library.

Susan explained to Arts Law that she literally stumbled upon the unauthorised use of her work. “It was actually a book that fell off the shelf at my feet. The work wasn’t fresh in my memory or anything, and I was sort of like: er… what’s this?”Susan said she felt “a mixture of shock and disbelief” upon realising that this was one of her works.

Even so, Susan did not immediately know what she could do about the unauthorised use: the book had first been published many years ago, she no longer had any of her invoices or other documentation concerning the original commissioning of the artwork and she did not know who to contact for advice. Susan said that she thought it wasn’t right that some other party had used her work without her permission, and that this feeling irked her for some years, but it was not until she spoke to a friend in the publishing industry that she finally realised she might be able do something about it.

“[I had] a friend who had a book publishing business, so I started off by asking her… she actually told me to get in touch with the Australian Publishers Association, that was my starting point and they actually suggested Arts Law.”

Susan received initial advice from Arts Law on the unauthorised use of her work and drafted a letter of demand to send to the publisher of the book. Susan then used Arts Law’s Document Review Service to review her letter before sending it off. Susan and the publisher corresponded and with some further assistance from Arts Law, Susan was able to come to an agreement with the publisher for payment of a retrospective licence fee for use of the image.

Susan was pleased with this outcome, especially as she had never received legal assistance before this. “I think everybody has trepidation about [their first] legal experience” Susan explained. “Where’s it going to go? How much is it going to cost? I don’t think it’s something anybody wants to venture into.” Yet Susan also explained that she was really happy with the assistance she received from Arts Law. She thought that everyone at Arts Law was very helpful and as a result of their clear and helpful instructions she was able to negotiate with the publisher confident about her rights and what a fair response to her grievances would be.

Further useful Arts Law resources:

Pauline Casely-Hayford: Getting your public commission contract right

Pauline Casely-Hayford is an experimental filmmaker, visual sound and performance artist. One of her most recent experimental films Confidential Despatch was officially selected for the 2014 International Black Women’s Film Festival in San Francisco, U.S.A. Pauline is currently completing a PhD that focuses on experimental film, moving image, visual culture and legacy at Queensland University of Technology’s Creative Industries Faculty.

In 2010, Pauline was one of several artists commissioned by the Sunshine Coast Council to create a visual installation artwork to be digitally projected onto the screens of a council-owned transit centre. These screens were visible from the outside of the building for public viewing in the courtyards. Pauline’s digital projection artwork entitled Cultural Remix: Sharing the Sacred focused on the historic and current diversity of cultural expressions found in the local community. Pauline’s preliminary research involved photographing, filming and interviewing people, and recording sound bites from members of the community. 

Following discussions, the Council gave Pauline a contract in respect of the commissioned work. Pauline wanted a lawyer to look over the contract to ensure she was getting a fair deal and in particular to help her better understand her intellectual property rights in the installation.

Arts Law referred Pauline to Harold Littler of McKays Solicitors. Harold was kind enough to review the agreement on very short notice, as the devastating 2011 Queensland floods had prevented Pauline from getting in touch with Arts Law until only a few days before she had to sign it. Harold advised Pauline that the contract was designed for a commissioned work of sculpture and was inappropriate for the production of digital projection work. The agreement didn’t adequately outline what was required of Pauline in terms of the technical requirements for the digital projection, and the payment structure and public liability insurance requirements were unsuitable. Harold suggested that Pauline draw up a brief of what she expected to do to complete the project and to present the brief to the Council to incorporate in the final contract. Pauline was extremely grateful for Harold’s advice and engaged in further negotiations with the Council to create a more comprehensive and fair agreement that addressed both her needs and those of the Council.

Artists and also arts organisations should be wary of using a ‘one size fits all’ template. A contract that works well for one type of art medium may not work so well for another. Sculptures and digital art projections raise quite different issues and contracts need to be adjusted accordingly. Contracts for commissioned works should outline clearly what work is required of the artist and the payment structure upon completion of the work. In this case, legal advice obtained by one party ultimately helped both parties come to an agreement that set out clearly what they wanted to achieve.

Further Resources from Arts Law

The Town of Victoria Park: Best Practice in Public Art

The Town of Victoria Park on the Swan River in Western Australia is a vibrant, urban community. Its local government authority understands the important role played by public art in shaping an exciting, creative and unique environment. The Town’s Public Art Masterplan envisages expenditure of over $700,000 on new public artworks in 2013-2015.  Additionally  the farsighted ‘percent for art’ policy requires developers of projects with a value of $5 million or more to make a monetary contribution of 1-1.25% of the value of the development to the Town for a public artwork or incorporate a work of art of that value into the development.

In 2014, the Town worked with Arts Law to develop a Public Art: Design and Commission Agreement for the Town to use when commissioning artworks as well as a template agreement for developers.  Arts Law’s ‘artists first’ policy meant that it would only assist on the basis that the Town agreed that the agreements would be prepared on a best practice basis. This approach was consistent with what the Town wanted – to strike a fair balance between its needs and those of the artists. Arts Law is often approached by organisations, such as councils, for advice on developing fair and equitable systems for negotiating or contracting with artists. Arts Law will only provide legal advice in such situations if it considers that doing so will assist in embedding best practice within that organisation and thereby create flow-on benefits to a substantial number of artists.

Arts Law met with staff of the Town of Victoria Park, reviewed its policies and developed two separate agreements – one for use when the Town commissioned public artworks and one for the Town to make available to any developers seeking to commission artworks for incorporation into their development projects. These agreements dealt with payment protocols, insurance, the design approval process and the construction process as well as what happens if the Town or developer rejects a design or the artist is unable to complete the artwork due to illness. Significantly, these best practice agreements contain clear requirements for additional payments to be made to artists where an unreasonable number of changes are requested. The agreements explicitly protect the artist’s moral rights and copyright while recognising that one aspect of encouraging a vital creative culture which engages the public with public spaces is the ability to facilitate and publish images of such works for non-commercial purposes. They also deal with the artist’s rights when repairs or restoration work is required and clearly set out a deaccessioning process.

Based on this collaboration, Arts Law has now revised and updated its own Public Art Design and Commission sample agreement to reflect best practice for local government authorities and other organisations wanting to commission public artworks.

“The Town of Victoria Park has been working closely with Arts Law over the past nine months in formulating leading edge documents in support of contractual arrangement for public art commissions. Arts Law asked to use this collaboration as a case study given the great strides taken together in forging ahead with arts industry best practice. The Town is pleased to collaborate towards positive outcomes for our artists, developers and the broader community. This association is a valued relationship.”– Mayor Trevor Vaughan

Artists of Ampilatwatja: Dealing with an overseas gallery

Artists of Ampilatwatja Corporation is an Aboriginal community art centre located about four hours north east from Alice Springs in the Northern Territory that supports local Alywarr artists of the Ampilatwatja community. Ampilatwatja artists paint finely dotted landscapes depicting each artist’s own particular country in a distinctive style using a broad colour spectrum .

In 2012, Ampilatwatja contacted Artists in the Black about a dispute with an overseas gallery relating to a contract for the consignment and sale of artworks. The contract had been made earlier that year for the exhibition and sale of 32 artworks produced by 17 of its Indigenous artists. Under the contract, the gallery was to pay either a percentage of the retail price set by the art centre, or a percentage of the price an artwork was sold for, within 2 weeks of any sale or at the end of the consignment period. Unsold artworks were to be returned to the art centre at the end of the consignment period.

The exhibition was successful and twenty two of the paintings were sold. A dispute arose as to the calculation of the amount owed to the artists and the return of the unsold works.

In most cases, Artists in the Black can provide very little help to artists in dispute with galleries or businesses located overseas. We can only advise on Australian law and it is extremely difficult to recover money or property from overseas. However, on this occasion, Artists in the Black was able to persuade international law firm DLA Piper to provide the services of a lawyer based in the United Kingdom on a pro bono basis. Solicitor Luke Holmes negotiated a successful resolution of the dispute that involved the return of the remaining unsold artworks and agreeing the amount of the final payment.

Doing business overseas can be fabulous for raising your international profile and accessing new markets but it is very risky. Make sure you are dealing with someone reputable and trustworthy. If things don’t work out, it will be difficult and expensive to enforce your contract. In addition, it is always worthwhile making sure that your contract is clear and unambiguous so that when a dispute does arise, you know where you stand.  

Further information:

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