1. What is a licence?
- A licence is a permission from one person to another (often called a “licensee”) allowing the other person to do something. Without this permission, the licensee would not legally be able to do any of the permitted acts.
- When someone permits another person to use an artistic or other work protected by Australian copyright law, that person is licensing all or part of the copyright in the work. This is because copyright gives an owner of it particular exclusive rights, including to:
- reproduce the work (eg take copies of it by photocopying, photographing, copying by hand, filming, scanning into digital form or copying from a digital file).
- publish the work (eg when reproductions are made available to the public in an art book, on t-shirts or on postcards).
- communicate the work to the public (eg when the artwork is uploaded to the internet).
- Examples of a licence:
- An artist who owns the copyright in an artwork can licence (or permit) another person to reproduce this artwork for a specific purpose.
- If someone wants to use an image of an artist’s painting and screen-print the image onto t-shirts, or use the image for greeting cards, posters, books, a film, on a CD-Rom or on the internet, that person will need the artist owner’s permission to do so.
- Licensing the use of an artwork is different to selling the physical artwork itself.
2. Who can licence?
- To licence an artwork you must be the copyright owner or have a licence from the copyright owner to pass on licences to others. Normally the artist who creates an artwork owns the copyright in it.
- There are some circumstances where an artist will not own the copyright in their work eg if an artwork is created in the course of employment (the employer will then usually own the copyright) or, for some works, if the work was commissioned (the commissioner may then own the copyright).
3. Types of licences
Exclusive licence – When the Licensor authorises the Licensee, and no one else, to do certain things. The Licensor is also excluded from exercising the rights granted to the Licensee under the licence.
The licence must:
- be in writing.
- be signed by the Licensor or someone on the Licensor’s behalf.
- be signed by the Licensee or someone on the Licensee’s behalf.
- provide a reasonable fee or royalty to the Licensor. This is because the Licensor will not be able to licence anyone else to do the things covered in the licence.
Sole licence – When the Licensor authorises the Licensee, and no other licensees, to do certain acts. The Licensor, however, can still exercise the rights granted under the licence.
Non-exclusive licence – When the Licensor authorises the Licensee to reproduce, publish or communicate the work to the public but the Licensor wants to retain their rights and continue to use the work themselves, and grant licences to others. A non-exclusive licence can be oral. It is always better, however, to have a written agreement.
Implied licence – This will be implied from the circumstances. For example, when someone sends a letter to the editor of a newspaper there is an implied licence that the newspaper can edit and publish the letter. Also, when an artwork is commissioned for a purpose, the commissioner usually has an implied licence to use the artwork for that purpose, unless there is an agreement otherwise.
4. Licensing checklist
Some points to consider include:
Parties: The agreement should clearly identify the people or organisations making the promises.
Licence type: Decide whether an exclusive, sole, or non-exclusive licence is appropriate.
Rights granted/licence scope: Decide on the scope of the licence, ie the way that the Licensee will be allowed to use the work. For an artwork, this could include:
- the permitted dimensions and colours of any reproduction;
- the kinds of objects the Licensee may print the image onto;
- the kinds of mediums or multimedia platforms in which a reproduction is permitted;
- the “print run”, or the number of items on which the image may be reproduced; or
- the way in which the image can be used on any promotional brochures for a product.
Moral rights: Set out how the artist wants to be attributed (named) and where they want this to appear on any reproduction. For example: “Original work by Sam Joseph © 2004”; or “Smiling © Sam Joseph 2004”. Specify that the artist’s consent must be obtained to alter the artwork/image, add something to it, or change it in any way. Remember that an artist cannot sell, transfer or license moral rights.
Term: Set the time during which the Licensee may use the rights granted under the licence.
Territory: Determine the place in which the Licensee may use the rights granted under the licence. Does the Licensor want this place to be limited to a specific town, region or country?
Payment: Agree on the amount or amounts the Licensee will pay the Licensor. Payment can either be a flat fee, royalties (ie a percentage of money received from using the rights granted under the licence) or both. Artists can seek advice from organisations such as Viscopy about payment rates. Also consider whether any GST is payable.
Termination: There should be a clause covering what will happen if there is a breach of an important part of the agreement, and how long the Licensee and the Licensor has to fix the problem before either can exercise the right to end the agreement. There should also be a clause that sets out what happens when the agreement ends.
Evidence: A record of the agreement should be kept. Two copies of the agreement can be created so that the Licensor and the Licensee can each have a signed original.
Duty/Government charges: Check whether stamp duty is payable on the licence. If you are unsure contact the Office of State Revenue or its equivalent in your state.
Further Information
Australian Copyright Council
Website: www.copyright.org.au
Viscopy
Tel: (02) 9280 2844
Website: www.viscopy.com
Viscopy is the copyright collecting agency for owner of copyright in artistic works, including illustrators, painters, cartoonists, photographers, sculptors and multimedia artists and can assist in locating artists to obtain permission to reproduce and work and advice on the appropriate copyright rates payable.
Media Entertainment and Arts Alliance (MEAA), Artworkers Section
Tel: (02) 9333 0999 / (08) 9227 7924
Website: www.alliance.org.au
The Artworkers section of the Media Entertainment and Arts Alliance is the union that represents visual artists.
National Association for the Visual Arts (NAVA)
Tel: (02) 9368 1900
Website: www.visualarts.net.au
NAVA is a peak body that provides information, advice and lobbying services for visual artists. NAVA also maintains a comprehensive database of information about practicing visual artists and craftspeople in Australia.
Books
Visual Arts & Crafts – Sample Image Reproduction Licence
(Available from the Arts Law Centre of Australia)
Earning a Living in the Visual Arts and Crafts by James Stokes, Hale & Iremonger, 3rd ed, 1997. (Available at the Arts Law Centre of Australia)
DISCLAIMER
This publication is intended as a guide to the law only. It is not legal advice and should not be used as a substitute for legal advice. Although all care has been taken in preparing this document, the Arts Law Centre of Australia does not guarantee the accuracy, adequacy or completeness of any information and is not responsible for any errors or damage suffered as a result of it being relied upon. Legal advice should be sought on the specific issues affecting you.
The law as at 6 January 2006. This information applies to people who live in, or are affected by the law as it applies in Australia.
The Arts Law Centre of Australia has been assisted by the Australian Government through the Australia Council, its arts funding and advisory bod and Copyright Agency Limited.
