Artwork Copyright Licensing 101: What it all means and how it works
Commissioning an artwork can be an exciting and creatively fulfilling part of any project. For organisations and agencies, especially those working in collaboration with First Nations artists, such partnerships carry a deep cultural and ethical significance. However, many businesses approach this process without a clear understanding of copyright licensing, which can lead to misunderstandings and unintentional harm.
We have been working with organisations and government entities since 2020, creating commissioned Aboriginal artworks for Reconciliation Action Plans, First Nations Strategies and corporate branding. While we’re not experts, we’ve made it a priority to understand copyright licensing as best we can so that we can get it right, not just for our resident artist (Amy), but for the protection of all Aboriginal and Torres Strait Islander peoples and cultures.
This guide is designed to give you a simple overview of Aboriginal artwork copyright licensing. We cover some key terminology, what is contained in a licensing agreement, ways that licensing agreements can vary, and what you need to consider so that you can make informed legal decisions about the licensing agreement you enter into with an artist. By deepening your understanding of copyright licensing, you can ensure a respectful, ethical, and legally sound process for all parties involved.
Terminology to Know
Understanding the following terms is essential before you start the licensing process.
Copyright: Copyright legally protects an artist’s original work, giving them control over how it is reproduced, distributed, or adapted. Unless explicitly signed away in a formal agreement (which should never be done), copyright belongs to the artist by default.
Licensee: The licensee is the individual or organisation receiving the right to use the artwork under agreed terms.
Licence Term: Licence term refers to the duration of a licensing agreement, specifying how long the licensee can legally use the artwork.
In Perpetuity: This means the licence allows the artwork to be used indefinitely, with no expiration date.
Intellectual Property (IP): IP refers to creations of the mind, such as art, designs, and inventions. For artwork, IP remains with the artist unless explicitly transferred.
Indigenous Cultural and Intellectual Property (ICIP): ICIP refers to the cultural and intellectual heritage of Aboriginal and Torres Strait Islander peoples. This includes traditional knowledge, designs, stories, and imagery that hold significant cultural meaning. For more information on ICIP, read this great resource from Arts Law.
Attribution: This is the acknowledgment of the artist’s name and their role in creating the artwork that the Licensee is legally obligated to display alongside any reproduction of the artwork. Our contracts include a clause that allows the Licensee to not display an attribution under reasonable circumstances (considering the nature, size and placement of the artwork), e.g. if the artwork is printed on a pen, it is unreasonable to include an artist attribution due to the size.
Indemnity: A clause that protects the artist or licensee from certain legal liabilities, often used to safeguard rights over the artwork.
Termination: The process by which a licensing agreement can be ended, whether mutually agreed upon or due to breach of contract. Our contracts state that the artist can terminate any agreement if the Licensee breaches their obligations, warranties or representations, or becomes insolvent, goes into administration, is declared bankrupt or ceases to carry on business.
What Is a Copyright Licence Agreement?
A copyright licence agreement is a legally binding contract outlining how an artwork can be used. When you commission an artwork, this agreement determines the permissions granted and the rights and responsibilities of both parties.
Here’s what a standard copyright licence agreement includes:
Usage Rights: Details on how and where the artwork can be used in order to protect the integrity of the artwork and prevent it from being altered or misrepresented.
Licence Term: Specifies how long the licence is valid (e.g., 1 year, 10 years, or in perpetuity).
Payment Terms: Specifies how much you are required to pay for the licence, any applicable payment schedules and preferred payment method.
Attribution: Ensures the artist is credited as the creator and copyright owner whenever the artwork is used.
Artists’ Rights and IP: It should always explicitly state that the artist is and will always remain the owner of all Intellectual Property in the artwork and retains their Moral Rights over the work.
Responsibilities & Consequences: Outlines the obligations of the licensee and the artist (e.g. ICIP, warranties and representations) and what happens if one or both of them breach the Agreement (Disputes and Termination).
Some artists, particularly those experienced in copyright licensing, may provide their own agreements. Otherwise, organisations may be responsible for preparing the contract and, if this is the case, I strongly recommend reading our article, ‘Commissioning Aboriginal Art: Understanding Copyright, Licensing and Cultural Custodianship’ to ensure that your contract is culturally and legally ethical. Copyright licensing agreement templates can be obtained from Arts Law Australia but they don’t include protections for Indigenous Cultural Intellectual Property (ICIP), so it is essential to consult experts like Terri Janke & Co to help meet legal and ethical standards while protecting culture, even if you have your own legal team!
Creative Commons Licences and Why They Should Not Apply to Aboriginal Art
For the first time we recently had a client ask, “Does the artwork have to be copyrighted? Can it be creative commons?” It was not out of disrespect but purely out of lack of understanding, and once we explained it to them, they were extremely grateful that they now understood what it is and why it’s not appropriate to use it for Aboriginal art.
Creative Commons is a licensing framework often used in digital spaces that make content free to share and use by anyone and everyone world-wide, provided certain conditions are met.
First Nations cultural heritage must be protected. Applying Creative Commons licences to Aboriginal art risks appropriation and misuse, undermining the cultural context and meaning of the work.
Risk of Appropriation: Creative Commons licences feed into the already widespread amount of appropriation, stealing and copying of Aboriginal art, which is why it's so important for artists to retain control over, and protect, cultural practices and stories under Copyright.
Lack of Control: Creative Commons licences leave artists with limited control over who uses their work and how it’s reproduced. In the context of commissions, artworks are created for specific clients for very specific purposes and should not be available for just anyone to use, so it is absolutely necessary for the artist (and the commissioning party) to have full control over how the artwork is used and who can use it.
Cultural Sensitivity: Aboriginal art carries deep spiritual and cultural significance that needs careful handling through controlled and ethical licensing.
For these reasons, it’s critical to ensure First Nations artists retain full control over their artwork through tailored copyright licence agreements.
Non-Exclusive vs Exclusive Licences
There are two main types of licences to consider when commissioning artwork: non-exclusive and exclusive licences.
Non-Exclusive Licences
What It Means: The artist retains the right to use the artwork elsewhere, including in their portfolio, on merchandise, or licensed to other clients.
Application: Suitable for organisations using artwork for specific projects or temporary needs (e.g., a Reconciliation Action Plan or stand-alone promotional campaign).
Example: A two-year licence allowing an organisation to feature the artwork in event materials while the artist continues to sell prints of the same piece.
Exclusive Licences
What It Means: The licensee has sole rights to the artwork for the agreed term, while the artist may use it only for their portfolio and self-promotion.
Application: Ideal for organisations integrating the artwork as a core element of their branding, across all marketing materials and channels.
Example: A 10-year exclusive licence for an organisation using the artwork in advertising, packaging, uniforms, promotional items and office design.
Variations
Licensing agreements can be tailored to meet unique needs. For instance, an organisation may hold exclusive rights while allowing the artist to use their artwork commercially.
How long are you really going to use it for?
The licence term is one of the most important considerations in the copyright licensing process. While perpetual licences may seem convenient, they are not always practical or respectful.
Key points to consider when setting a licence term
Time-Limited Licences: Licences can range from 1 year to 10 years or more. Our standard term options are 2, 5 or 10 years for non-exclusive licenses and 5 years, 10 years or in Perpetuity for exclusive licenses, however any period of time can be set. Renewal options ensure flexibility without committing to indefinite use, so if you’re not sure exactly how long you want to use an artwork for, why not buy a 10 year licence with the option to buy another 10 year licence when the first one expires?
Strategic Alignment: Organisations often align licensing terms with specific projects, such as Reconciliation Action Plan stages (Reflect - 12-18 months, Innovate - 2 years, Stretch - 3 years, Elevate - 3 years) or time-specific organisational goals (e.g. a 10 Year Strategic Plan).
Forever is a long time: It is unrealistic to assume that an artwork is actually going to be used forever within an organisation. Holding a licence in perpetuity may lead to the artwork being underused or forgotten over time, which is deeply disrespectful to the artist and their culture. Don’t 'put the artwork on a shelf to collect dust' if you stop using it, instead, return unused rights back to the artist to ensure the artwork can continue to carry meaning.
It’s important to evaluate whether a perpetual licence genuinely benefits your organisation. If not, choosing a time-limited option with renewal possibilities is often a better solution.
If you don’t know, go and find out!
Understanding copyright licensing is more than a legal requirement; it’s an opportunity to build trust, show respect, and create meaningful collaborations with artists. By understanding the ins and outs of copyright licensing as it specifically relates to Aboriginal art, your organisation can confidently approach commissioning projects while upholding cultural integrity.
Integrity is key: don’t blame your organisation’s actions or inactions on ignorance, be responsible and accountable for educating yourself. If you don’t know, go and find an expert and find out.
