Artists' Rights

The Copyright Act 1968

In Australia the Copyright Act (1968) seeks to protect the owner’s right to the work. There are many conditions that apply to basic rights, licensing, assigning copyright and appropriation.

  • Copyright protects particular works, the unique way the artist has expressed an idea, not the ideas itself or the information, slogans, titles, techniques or styles used in creating the work.
  • The owner of copyright does not have the right to prevent the work being exhibited in a gallery or hung on a wall but they do have the right to prevent the work being placed on the Internet as this is a form of reproduction and communication of the artwork.
  • The Australian Copyright Act 1968 requires any person who reproduces an artwork to seek the permission of the person who owns the copyright of that work.
  • Copyright law covers an artwork as soon as the artwork is made.
  • There is no system of registration for copyright protection in Australia.
  • You do not need to publish your work, to put a copyright notice on it, or to do anything else to be covered by copyright — the protection is free and automatic. There are no forms to fill in, and there are no fees to be paid. You do not have to send your work to us or to anyone else.
  • The artist who makes the artwork is usually the first owner of copyright.
  • Copyright is a form of personal property and it can be formally transferred or sold to another person, usually through assignment or licensing of the copyright.
  • When an artist assigns the copyright of an artwork, someone else becomes the owner of the copyright.
  • When an artist licenses the copyright of an artwork, they still own the copyright but they allow someone to use the artwork. The licence to use an artwork for a particular period of time, and in a particular way will form part of the agreement. The artist will usually receive a flat fee or royalty, but sometimes they will give permission for their work to be used and they benefit from the publicity.
  • The copyright of a work is different to the artwork itself. When an artist sells an artwork they still own the copyright to that artwork. The copyright to an artwork generally lasts the life of the artist plus 70 years (2005 amendment). Exceptions to the rule include photographs created prior to 1955.

Australian Copyright Council

Copyright Issues

The copyright for a significant number of Australian artists is Viscopy, a not-for-profit copyright collection agency. Viscopy

Viscopy is Australia and New Zealand's not-for-profit rights management organisation for the visual arts providing copyright licensing services.
Viscopy is a legal entity, with members and a board. They represent:

  • 43% of Australian and New Zealand artists and their beneficiaries.
  • 40,000 international artists and beneficiaries in Australian and New Zealand territories through reciprocal agreements with 45 visual arts rights management agencies around the world.

Viscopy's business is managed by Copyright Agency.

Artworks are copied for many reasons – commercial and non-commercial purposes such as in books, magazines, t-shirts, on TV, as prints and posters. Artists are within their rights to charge a fee for their work being used in this way; they often don’t, especially for educational or not-for-profit purposes.

Auction Catalogues reproduce works in order to sell artworks. Some artists claim this is a breach of copyright and that they should receive a fee. The auction houses claim this is good publicity for the artists, which eventually leads to higher prices for their subsequent works.

For artists working in the context of Postmodernism, the issue of using appropriated images is often seen primarily as a philosophical and artistic issue, rather than a legal matter. Post-modern art theories see images as signs whose meanings are fluid, determined by place, time and context and the prior experiences and knowledge that the viewer brings to the image. Artists who use appropriation rely on the fact that the images and ideas they appropriate are well known and recognised by the viewer. The viewer takes the meaning of the original artwork and translates it into the new work.

Using borrowed elements challenges the idea that an artwork must be entirely original. In the past there has been a great value placed on the idea that an artwork is unique and original created by an individual artist.
Today many artists believe it is impossible to create a genuinely original image. The artist is seen as a manipulator of existing images, forms and styles. This has lead many contemporary artists to freely borrow and rework images, forms and styles from art and popular culture. This idea that artists use and manipulate images, but do not create them from nothing and cannot own them, conflicts with copyright law, which works on the premise that artists create original images and have a right to own them.

Although appropriation is widespread, prosecutions of artists for copyright infringements are not common. This is largely because artists do not make enough money to take legal action or make enough money to pay infringement costs.

However, artists have been taken to court. American artist, Jeff Koons, based a series of sculptural works, "String of Puppies", on a postcard photograph. The photographer successfully sued Koons for breach of copyright infringement and damages. The court said that there were obvious similarities and they did not recognise Koons' arguments about appropriation as a valid means of creating new work.