Commissioning Aboriginal Art: Understanding Copyright, Licensing & Cultural Custodianship
Commissioning an Aboriginal artwork for your corporate brand, office space, initiative or Reconciliation Action Plan is a powerful way to celebrate and acknowledge First Nations culture. However, many businesses misunderstand the legal and cultural dimensions of copyright and Indigenous Cultural and Intellectual Property (ICIP) when commissioning Indigenous art.
One of the most common misconceptions is that paying for an artwork means owning its copyright. In reality, commissioning an artwork does not automatically transfer copyright to the corporate entity (or individual, for that matter) and, in fact, a corporate entity should never ask or expect to own the copyright. Aboriginal and Torres Strait Islander peoples always have and always will be the sole custodians of their culture (traditional symbols & practices, stories, songs, dances, performances, rituals, language, laws and kinship systems) and have the sole rights to express, protect and share their cultural heritage on their own terms, in perpetuity (forever). Understanding this is critical, not just for legal reasons but also for upholding First Nations self-determination, sovereignty, and cultural custodianship.
Copyright vs. Ownership: What Businesses Need to Know
Copyright is a legal right that protects the artist’s original work, granting them control over how it is reproduced, distributed, or adapted. Under Australian copyright law, the artist retains copyright unless they explicitly sign it away through a formal agreement and, I cannot emphasise this enough - under no circumstances should you ever ask a First Nations artist to sign a formal agreement that gives you full ownership of their copyright and IP! It is morally and ethically wrong.
So, even if a corporate entity commissions and pays for an artwork, they do not automatically own the right to reproduce or modify it, such as applying it to merchandise, digital content, advertising or any corporate collateral. To use the artwork beyond the original physical piece, businesses must obtain a copyright license from the artist.
The Role of Licensing in First Nations Self-Determination
Licensing is not just a legal requirement, it plays a crucial role in supporting Indigenous artists and protecting their cultural heritage. A licensing agreement ensures that:
Artists maintain control over their work, allowing them to decide how and where their art is used.
First Nations cultural knowledge is protected, upholding the integrity of symbols, stories, and traditions embedded in the artwork by ensuring all copyright, IP and moral rights remains with the artists and their communities.
Indigenous artists are fairly compensated, through ongoing royalties or fees for extended use.
For First Nations communities, art is more than a visual expression, it is a living connection to Country, ancestors, traditional practices, lore and cultural responsibility. Licensing enables artists to sustain their creative practice while preserving their role as cultural custodians.
Respecting Cultural Custodianship Through Ethical Agreements: Corporate entities need to do better!
When engaging an Aboriginal artist, businesses should prioritise ethical licensing agreements that respect both copyright law and Indigenous cultural protocols. Key considerations include:
Clearly define usage rights - specify how, where and for how long the artwork can be used.
Ensure ongoing recognition - acknowledgethe artist’s name in all reproductions.
Protect cultural integrity - prevent modifications or applications that misrepresent or misuse the artwork.
Negotiating fair compensation - agree on fees for extended use or commercial applications.
Working with First Nations artists should be a partnership, not a transaction. Ethical licensing practices reinforce Indigenous sovereignty and create long-term, mutually beneficial relationships between artists and businesses.
At Indigico Creative, we have worked hard to ensure our artwork commissions are supported by ethical and culturally appropriate licensing agreements. The standard contract we use is a Copyright Licence Agreement developed by Arts Law, which was reviewed and amended by Terri Janke & Co to include provisions for protecting ICIP.
Unfortunately, many First Nations artists are not aware of their legal and moral rights, and do not understand the legal jargon and language used in contracts, which results in artists agreeing to unethical and culturally inappropriate legal terms. If a corporate entity is supplying an artist with a contract, it is their responsibility to do their due diligence to ensure their contract is not taking advantage of the artist.
Corporate entities often have their own legal teams who create their contracts, but the problem is those legal teams often have zero experience in art-specific law and zero knowledge of ethical ICIP protocols.
So how can corporate entities play their part in supporting the self-determination, sovereignty and cultural custodianship of First Nations artists and communities? Well, here’s a few resources that should have a permanent place in all engagements with First Nations artists:
Arts Law Centre of Australia - Australia’s only Terri Janke & Conational community centre for the arts. They are a not-for-profit that is committed to strengthening the value and respect for creative communities and culture to make a better world, by providing free or low cost legal advice, education and resources
Terri Janke & Co - Australia's oldest and largest pArts Law Centre of Australiarivate Indigenous owned Legal and Consulting Firm specialising in Indigenous Cultural and Intellectual Property (ICIP).
Australia Council for the Arts: Protocols for using First Nations Cultural and Intellectual Property in the Arts - First published in 2002 and revised in 2007, this protocol guide endorses the rights of First Nations people to their cultural heritage and supports First Nations creative practice.
Final Thoughts: First Nations Art is a Privilege, Not a Commodity
Commissioning Aboriginal art is an opportunity to honour and engage with First Nations culture, but it comes with responsibilities. Understanding copyright and licensing is essential to ensuring that Indigenous artists retain control over their work and that their cultural heritage is respected.
By approaching Aboriginal art commissions with integrity, businesses can move beyond transactional relationships and support First Nations self-determination in a way that is meaningful, ethical, and legally sound.
If you are a corporate entity looking to commission a First Nations artist, don’t assume you’re doing it right - seek guidance and advice to ensure you navigate copyright, licensing, and cultural protocols with integrity and respect.
