Local, State and Federal Government in Australia ('Government') provide grants to artists, organisations and spaces such as galleries ('Funded Organisations') to acknowledge artistic expression as an important freedom of individuals and to support and develop artists and creative industries.
Generally, the Government grants resources to Funded Organisations on an arms' length basis – however when an artistic work is challenging, controversial or politically sensitive, Government may intervene and censor, remove or request changes to an artistic work which they have funded in response to public complaints or negative media responses. Government will always be influenced by public opinion, media and political and social factors, and create laws in response to such demands. This article will discuss how a Funded Organisation can take some simple steps to maximise the exposure of their work whilst minimising the risk of losing funding or having their work censored.
When a Funded Organisation receives a Government grant, a Funded Organisation will be required to enter into an agreement with Government. Most funding agreements will require the Funded Organisation to warrant that the Funded Organisation will comply with:
- the funding body's protocols; and
- current laws – in particular defamation and classification laws.
If a Funded Organisation fails to comply with the terms of the funding agreement and is in breach any warranties given, the Government may be entitled to withdraw the funding. It is therefore important that Funded Organisations understand and comply with the terms of their funding agreement.
At the Next Wave Festival in 2008, the artists 'Split Second' did exactly this. For the Festival 'Split Second' intended to create a performance piece about a family picnic on the underside of Flemington Bridge overpass (near the CityLink Tollway Red and Yellow sticks) which was controlled by Citylink. 'Split Second' was granted permission to use the site by Citylink on the provision that they agreed to undertake an Occupational Health and Safety course and fully brief the audience on safety before commencement of the performance.
To satisfy their contractual requirements with Citylink, 'Split Second' completed the training course and used their experience of OH&S training to develop a humorous performance where Occupational Health and Safety manuals, insurance and risk management plans became part of the show and a way to move the audience from A to B. Not only was the performance very successful, 'Split Second' satisfied their contractual obligations, maintained their funding and developed a great relationship with Citylink which has sparked a further project.
Local, state and federal regulations and protocols
Some local and state governments and Government owned and run public spaces and galleries have developed protocols regarding funding and exhibiting artistic works, and these protocols may be incorporated into the terms of the funding agreement. Funded Organisations should find out whether any protocols apply to ensure they are not inadvertently in breach of their funding agreement.
For example, the City of Melbourne has a Protocol on Artworks which relates to artistic works funded by the council or exhibited in a council funded space. The Protocols states that a Funded Organisation may be required to inform the council if the artwork or program is likely to be highly controversial or injure the reputation of the City of Melbourne.
Often Governments have a knee jerk reaction when certain expenditure (particularly the arts!) is criticised in the media. To avoid such reactions, a Funded Organisation is best to work with Government before the exhibition, broadcast etc of the work so that Government can prepare a response if there are complaints or negative media criticism.
Prior to the City of Melbourne implementing their Protocol on Artworks, an artist presented a series of small photographs of nude males in Platform Gallery as part of the 2008 Next Wave Festival. Platform Gallery is a thoroughfare from Flinders St Station to Flinders St and is an Artist Run Initiative supported by the City of Melbourne. Following complaints about nudity, the City of Melbourne instructed Platform Gallery to cover the photographs. The artist requested that the City of Melbourne discuss the reasons why the photographs were covered. To the credit of the City of Melbourne, a Councillor and Arts Officer from the City of Melbourne participated in a public forum with the artist to discuss censorship, nudity and the presentation of challenging artwork in council funded spaces.
Next Wave had discussed other controversial events with the Council but, as the artist had not considered the work offensive, this particular exhibition was not discussed with Council. It just goes to show that no matter the content of the artistic work, it may unknowingly challenge the audience.
Defamation and classification
When a Funded Artist or Organisation sets out to create a piece of work, the last thing on their mind is the legal ramifications of their artistic statement. Generally, it is a condition of all funding agreements that the Funded Artist or Organisation will comply with current laws which include defamation and classification.
When creating an artistic work, a Funded Artist or Organisation must consider whether any direct or indirect statements contained within the work are defamatory. Defamation broadly involves a statement that tends to diminish an individual's reputation in the estimation of others.
For example, let's say an artist writes an article about the presence of homophobia in our sporting culture. In the artist's article, the artist claims that a well known sportsman is a homosexual. If the artist were to publish the article or otherwise communicate this article to a third person and the sportsman felt his reputation had been damaged, he may be entitled to bring an action against the artist for defamation.
If you are concerned that your work contains defamatory material, it's a good idea to seek legal advice such as from the Arts Law Centre of Australia. If there is material that would likely be considered defamatory, you may have to remove or change it before publishing or broadcasting your work.
If you are publishing or broadcasting your film or literature, your work may need to be classified by the Classification Board of the Office of Film and Literature Classification (OFLC) before you publish or exhibit your work. Most films, especially if they have elements such as sex and violence, must be classified before they can be publicly exhibited in Australia. Literature, on the other hand, only needs classification if it is a 'submittable publication'.
If you are intending on exhibiting your film/video art in public or publishing certain literature and it contains classifiable elements such as sex, nudity, drug use, violence and coarse language, you should contact the OFLC to determine if you need to apply for classification. For more information on classification go to the Classification Board website.
When receiving government funding or working with a Funded Space, it is important that you adhere to the terms of your funding agreement and other protocols set by Government. If your work is likely to be controversial, it is important to raise this with your funding body or space before the exhibition so that the Government is able to consider your work and prepare itself for negative feedback and complaints.
Bethany Jones is a solicitor at Media Arts Lawyers, Melbourne. She previously worked at Arts Victoria as a Senior Arts Officer and currently sits on the board of the National Young Writers Festival.