Artistic projects often involve collaboration between a number of individuals and organisations. This can raise numerous issues for Indigenous artists, as well as other creators and organisations involved in collaborative projects. Issues that arise include ownership, copyright, moral rights, acknowledgement and respect of Indigenous intellectual property and the processes for working together (protocols). Collaborative projects can be either projects whereby a number of Indigenous artists are involved in the one project, intercultural partnerships between Indigenous and non-Indigenous individuals and organisations, as well as group projects being worked on by non-Indigenous artists which have Indigenous content.
When numerous people contribute to the creation of a new work (e.g. a sculpture), it needs to be made clear who owns the physical item and who is responsible for its maintenance. It is best if this is set out in writing. It may be that an organisation provides all the materials and makes payment for the work, owning the final work that is created, however the creators will still own the copyright unless this is otherwise agreed, in writing and signed by the artists.
When an artwork is created jointly by a number of individuals, i.e. in a manner such that the work of one creator is inseparable from the work of the others, the creators of the work have joint ownership of copyright. This means that no creator can deal with the work as if he/she were the sole creator of the work. The creator needs permission from the other copyright owners to do the things covered by copyright. This position may be altered by contract so it is important that the ownership of copyright is discussed in collaborative projects so everyone is informed about their rights.
More information about copyright.
When an artistic work is created collaboratively moral rights belong to each of the joint creators. These moral rights are personal to each individual artist. This means that if one creator consents to an act which affects his/her moral rights, this does not necessarily affect the moral rights of the other creators. For example, if one artist in a collaborative artwork consents not to being attributed, this does not mean that the other artists have also given this consent.
More information about moral rights.
Not all ICIP is automatically recognised and protected under Australia's copyright and other laws. In order to ensure that ICIP which is incorporated into collaborative creative projects is properly respected and protected, it is important for participants to address this issue. There are a range of Indigenous protocols which help people involved in collaborative projects to work through the ICIP issues.
More information about ICIP.
When collaborative projects involve either non-Indigenous and Indigenous individuals or organisations working together on a project, or non-Indigenous artists or organisations working on a project with Indigenous content, it is important to be respectful of any Indigenous cultural and intellectual property involved. Indigenous protocols provide useful guidelines and principles to follow when undertaking collaborative works. Protocols can help everyone to identify the Indigenous cultural material and the processes which need to be put in place to ensure that the materials and its custodians are treated properly.
More information about Indigenous protocols.
A Code of Practice for Creative Collaboration is currently being developed by an advisory group led by Kevin Murray to help manage craft and design collaborations.
UNESCO’s "Designers Meet Artisans – a practical guide" provides useful information about managing design and craft collaborations.
The Arts Law Centre of Australia has a number of sample agreements which may be useful in managing some aspects of your collaborative projects.
In “Beyond Guarding Ground”, Terri Janke suggests, on the basis of specific examples, the limitations of Australian law to protect Indigenous arts and cultural expressions. She proposes the creation of a National Indigenous Cultural Authority to implement the rights of Indigenous people under Article 31 of the Declaration on the rights of Indigenous people to maintain, control, protect and develop cultural heritage, traditional knowledge and traditional cultural expressions. Terri Janke suggests that the National Indigenous Cultural Authority could also act as a clearing house, with the task of negotiating and holding collectively rights to culture.
This sample INDIGENOUS COLLABORATION AGREEMENT should be used when a designer in the fashion, textile or home furnishing industry, or a business that is involved in the production of articles for the fashion and furnishing industries (the Designer) wishes to work together with an Aboriginal or Torres Strait Island visual artist/ or group of visual artists (the Artist) to create and produce clothing, textiles and/or furnishing items based on or incorporating or inspired by the artworks of that artist or artists.
Look out for a new Arts Law template contract to manage collaborative works, coming soon!