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Copyright: Questions and Answers

Q: How do I get copyright in my work?

A: Copyright protection is free and automatic. It exists as soon as a work (i.e. song, dance, artwork, story, play) is written down or recorded in material form. There are no forms to fill out and you do not need to register your work. As long as you have not copied from another work, you will own copyright.

To make it easier for people to identify that you are the owner of the copyright it is a good idea to draw a copyright symbol, followed by your name and the year the work was finished somewhere on the work. For example:- © NIAAA, 1997

Q: Can I use designs and images from other Aboriginal or Torres Strait communities?

A: No. Strictly speaking, you should only use designs, images, dances and stories from your own Aboriginal or Torres Strait Islander community in your work. Otherwise you should get the full permission of the traditional custodians of the design to use it within your work.

You should never reproduce sacred or secret images unless you have permission to do so under Aboriginal law. For instance, the Wandjina is a very special image from the Kimberley area. Rights to reproduce this image are governed by Aboriginal laws and there may be strong penalties for unauthorised uses.

Q: Should non-Aboriginal or non-Torres Strait Islander people paint Aboriginal images and styles?

A: If you are not Aboriginal or Torres Strait Islander you should not use Aboriginal or Torres Strait Islander designs or images in your artwork.

The National Indigenous Arts Advocacy Association (NIAAA) is concerned about the number of non-Indigenous artists that are using representations of Aboriginal and Torres Strait Islander cultural images.

Images such as the rainbow serpent and specific Aboriginal designs such as the rarrk, x-ray and acrylic dots have been used by non-Aboriginal artists in their artworks. NIAAA does not endorse the use of Aboriginal and Torres Strait Islander designs and images by non-Indigenous artists. We believe that a person seeing the design or purchasing the artwork would be led to think that it was in fact, produced by an Aboriginal or Torres Strait Islander artist.

Further, by copying Aboriginal and Torres Strait Islander designs and images, the cultural significance of the designs and images are being weakened. Given the history of mistreatment of Aboriginal and Torres Strait Islander people in Australia, it is important that Aboriginal and Torres Strait Islander people have control over the development of their own forms of artistic and cultural expression. To this end, NIAAA strongly urges non-Indigenous artists to respect the cultural and religious significance of Aboriginal and Torres Strait Islander images and not use them in their artworks.

Q: Who owns copyright in works produced under a contract of employment?

A: The employer owns the copyright of works that are created as part of the employee's usual duties. If you are undertaking training programs of working for CDEP projects it is a good idea to draw up a written agreement with your employer which states that you will be the copyright owner of any work you produce.

Q: How do I know if someone is infringing my copyright?

A: If another person is making money by using a design, song, dance or any other work that you created, and you have not given permission to that person, they are probably infringing your copyright.

Q: Does the whole of my work need to be copied for there to be an infringement?

A: No. Copying a substantial part of a work will also infringe copyright. If a central or identifiable feature of your work is copied, your copyright has been infringed.

Q: What can I do if someone is infringing my copyright?

A: There are a number of possibilities. First you should find out who is responsible for the reproduction, inform them of your copyright claim and wait for a response. If you do not get a response and reproduction continues you can bring court proceedings against the infringer. NIAAA can provide you with some general advice as to your options and put you in contact with legal advisers who can assist you. The recent Aboriginal Carpets Case demonstrates that Indigenous artists can successfully protect their copyright and culture under existing copyright legislation.

Q: What is a reproduction agreement?

A: In simple terms, a reproduction agreement is a document that contains all details of an agreement as to the use of copyright. By signing a reproduction agreement, you are giving another person rights to reproduce and use your work for the terms listed under the agreement. This is called a licence. Such agreements are legally binding and cannot be amended without the consent of both parties. Hence, you should make sure that the reproduction agreement specifies, at the very least:-

1. that you are the copyright owner of the work at all times
2. whether the rights granted by you to the other party under the agreement are exclusive or non-exclusive

3. the purposes for which the licence is given e.g. reproduction of t-shirts only or unlimited purposes

4. the territory the licence will cover e.g. Australia or worldwide rights

5. the duration of the licence e.g. two or three years

6. an obligation on the part of the other party to pay you, preferably by way of a royalty. (eg. a percentage of the recommended retail price)

7. that accounting statements should be provided to you at specified times

8. that you will be given credit as creator of the work

9. that there can be no alteration or adaptation of the work without your prior written consent. You might also wish to prohibit particular uses of your work which you consider might be damaging to your, or your community's reputation and honour. (e.g. specifying that you do not want your work reproduced for the purpose of promoting alcohol)

10. that there can be no assignment of rights granted under the agreement without yourprior written consent

11. terms by which the agreement may be terminated by you.

Q: What is an assignment of copyright?

A: Generally, an assignment is a sale or transfer of copyright. By assigning your copyright, you are giving up all or some of your rights to a particular work to another person. An assignment must be in writing and signed by the copyright owner.

NIAAA does not recommend that you assign your copyright. It is not necessary in order to allow other people to use your work. A reproduction agreement is sufficient to do this. Be careful when signing contracts, that you are not signing an assignment.

© 1998 NATIONAL INDIGENOUS ARTS ADVOCACY ASSOCIATION Inc.

For updated information on the above you should contact the following organisations:

• Arts Law Centre of Australia
  
• Australian Copyright Council
  
• Aboriginal art — Selling out Aboriginal culture: yesterday, and today?
  15 July 2003 - ENIAR - Unfortunately, alongside the rapid development of an export market for Aboriginal Art and music in Europe, Europeans have not been able to develop a sensitivity to the cultural property rights and values of this culture. On the contrary, we find lately excrescences in Europe — in our whole observational field, but particularly in Germany — which would not have been able to survive in Australia for such a long period of time.

Further information:

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