A Guide to Copyright and Indigenous Australian Art
This is an introduction to the application of copyright law in the United States and Australia to Indigenous Australian art. We encourage you to read through each question consecutively to gain an introduction to the relevant concerns.
This guide was created by Collections Manager and Registrar Nicole Wade, in collaboration with her interns Kendall Stevens, Laura Bendick and Susannah Townes. It was reviewed by Dr. Vanessa Russ (Ngarinyin/Gija), former Associate Director of the Berndt Museum at the University of Western Australia, and Anthony Wallis of Aboriginal Artists Agency.
What is Copyright Law?
The word copyright refers to the exclusive legal right of artists, writers, musicians and other creators to distribute, reproduce, and profit off of their intellectual property and original creative expression. Copyright law, therefore, is the system of legislation and precedents that define and protect these rights.
In terms of visual art, once a work is copyrighted, the creator(s) has limited legal control over certain uses of the work, including reproduction, distribution, public performance, and public display. This prevents other individuals or corporations from using the original image and potentially profiting off of it, as they could face serious legal repercussions. While creative works can be formally registered, according to United States copyright law, a work is considered protected by copyright from “the moment it is created and fixed in a tangible form”.
Commonalities of US and Australian Copyright Law
Under current legislation in both the United States and Australia a single artist, or multiple artists in the case of a joint project, can hold copyright to a work of art they’ve created. However, this does not mean that only the artist(s) is legally allowed to utilize and display their work. Rather, creators can negotiate exclusive or non-exclusive licenses with anyone who would like to use their work. For example, an artist could license their work to a museum or gallery, allowing these institutions to reproduce and profit off of their work under mutually agreed upon conditions for a specific or indefinite period of time. This agreement gives creators an opportunity to receive fair compensation for their artwork.
Copyright law is complex and extensive, but not without limits. For one example, copyright extends throughout the duration of the artist’s life and is then passed on to their family and estate for the following 70 years. However, after this time has passed, the work becomes public domain – free for anyone to use, copy, or sell. Another example is that of fair use. This term refers to the use of a work in a way that fulfills the cultural goals of copyright (advancing knowledge and progress) without undue economic harm to the owner of the original work, and thus does not require consent from the artist. Examples of fair use as defined by US copyright law include research and private study, news reports, and judicial proceedings.
Intellectual Property & Communal Ownership
The protection of intellectual property entailed in copyright law can be a complicated subject, as it provides a much less concrete definition of property than one might expect. In most cases, copyright law doesn’t protect the physical object, but rather it protects the artist’s intangible “work” which is instantiated in copies. For example, it would be perfectly legal for one to sell, lend, give away, etc. the physical object they personally own. However, one would be infringing on copyright if they were to create a substantially similar work that includes significant elements of a copyrighted work. Copying doesn’t have to be literal to be infringing, but it must be more specific than just copying a motif, genre elements, symbolism, themes, etc. to qualify as a legal violation.
For many Indigenous artists, a critical weakness of existing copyright legislation is the lack of protection for communally owned designs. While U.S. and Australian copyright laws do not recognize communal ownership, understanding customs and norms of communal ownership is critical to understanding Indigenous Australian art. Many artists include clan designs and other traditional motifs in their artworks. These designs belong to the members of their communities as part of their cultural heritage and we believe they should be considered communal intellectual property. Knowledge and use of clan designs is often restricted to certain members of the community, such as elders or initiated men. Unfortunately, current copyright laws make no provisions for cultural heritage that is communally held or vested in groups. Individual copyright law cannot sufficiently protect the cultural heritage of Indigenous Australian art because it does not recognize the communal ownership of these elements.
What are Moral Rights?
Moral rights are a special consideration of copyright law that are given to works that require additional protections, like those works created by Indigenous Australian artists. Some of these rights are outlined in the 2000 Moral Rights Amendment to the Australian Copyright Act of 1968 and seek to supplement the early laws that did not adequately protect Australian Aboriginal people or their art.
The act first mentions the right to be attributed as the artist, meaning creators can require their names be clearly and prominently included alongside all reproductions of their works. It also protects against false attribution to another artist, allowing artists to take legal action against parties who cite others as the creators of theirs work. The third right allows artists to take action against parties who subject their works to inappropriate treatment, like material destruction, distortion, mutilation, or alteration of a work, exhibition of the work in a manner or location that causes harm to the artist’s reputation, or cropping/reproducing a work in poor quality.
The addition of moral rights to Australian copyright law is a small step towards fair and ethical legal treatment of Indigenous people and their artwork. However, moral rights remain challenging to enforce and still only apply to individual artists, or multiple artists in the case of a jointly-made artwork—they do not apply to communally owned patterns, such as clan designs.
In 1990, the United States passed the Visual Artists Rights Act (VARA) protecting the moral rights of attribution and integrity. As the Supreme Court ruled in the mid-1990s, VARA only applies to a restricted category of visual artworks, extends a limited set of rights, and is subject to exclusions and waivers that limit its impact. Works of visual art protected under VARA include paintings, sculptures, drawings, prints, and still photography produced for exhibition. Within this group, only signed copies or signed and numbered limited editions of 200 or less are protected.
While other nations may recognized an array of moral rights, VARA recognizes only attribution and integrity as legal causes of action. For visual artworks created on or after December 1, 1990, these specific moral rights are granted for the life of the creator, or in the case of a joint work of art, until the death of the last surviving artist.
Moral Copyright and Cultural Heritage
Both Australian and American copyright laws fall short in their ability to protect the moral rights and cultural heritage of Indigenous peoples. Therefore, individuals and cultural institutions should take further steps to ensure that Indigenous artists are fairly recognized and compensated, and that cultural heritage is treated respectfully. The Australia Council for the Arts’ Protocols for Working with Indigenous Australian Artists and the United Nations’ Guidelines for the Protection of Cultural Heritage are helpful resources for understanding moral rights and their importance to Indigenous communities.
At Kluge-Ruhe, we recognize that Indigenous peoples’ rights to their culture and traditional knowledge exists in perpetuity. Therefore, we seek permission to use Indigenous stories, designs, and themes even though they may be categorized as public domain under the law.
Furthermore, Indigenous communities may follow specific cultural protocol that should be respected in any other dealings with their art and culture. Many Australian Aboriginal artists include traditional designs in their artwork, like clan designs and sacred traditional knowledge. While these designs are examples of communally owned intellectural property not protected by copyright law, it would be unethical if one were to copy these patterns without consent from the artist or their community, even in part, because they hold cultural significance.
As these designs so often bear traditional significance to entire cultural groups rather than individual artists, it may be appropriate and necessary to obtain communal consent for their use, a factor that is completely ignored in practically all copyright legislation. As such, it is critical to recognize the communal intellectual property rights of clan groups and treat artists, their works, and their communities in a manner that respects shared ownership, rather than force them into a colonial framework of individual property. Without legal repercussions, the ethical responsibility of protecting these rights falls to the gallery, museum, or patron of a work.
The United Nations’ Guidelines for the Protection of Cultural Heritage offer a global framework for the protection of Indigenous peoples’ traditions and artistic practices. The document defines cultural heritage as the accumulation of all objects, sites and knowledge that have been and continue to be transmitted from generation to generation, and pertain to a particular people or their territory. It also includes objects, knowledge and literary or artistic works which may be created in the future based upon its heritage.
Copyright and Kluge-Ruhe
Kluge-Ruhe aims to provide research and educational resources in a manner that is respectful to Indigenous Australian artists and their communities. The museum seeks to ensure that artists and communities receive the proper acknowledgement and compensation that they have historically been denied. We value our moral obligation over and above the legal restrictions imposed by copyright. While current copyright laws do not recognize important moral claims of Indigenous people, our policies and practices can go a long way to vindicating those claims and set an example for other cultural institutions.
While the museum houses and exhibits a vast collection of Indigenous Australian art, it does not hold copyright to these works. Kluge-Ruhe recognizes the rights of artists and communities by ensuring that all works and digital copies are properly attributed. We obtain permission for all images used in support of our mission, including, but not limited to: publications, exhibitions, marketing materials, and the web. Out of respect for Indigenous Australian communities and artists, Kluge-Ruhe requests permission to use all images, even when the use of the image is legally considered “fair use” under the law. We strive to follow the recommendations in UN Guidelines and the Australia Council for the Arts: Protocols for Working with Indigenous Australian Artists. In addition, a copyright license credit line is displayed adjacent to all images, regardless of whether the image is in print or in digital form.
Kluge-Ruhe and its staff value the relationships forged with Indigenous Australian artists and communities, and takes measures to ensure that their rights are not infringed upon through consultation. Indigenous Australians have faced discrimination, cultural suppression and exclusion from socio-political narratives and economic systems since the onset of colonization. Despite this, they have been expected to follow the legal system of their oppressors. Kluge-Ruhe aims to look beyond the letter of the law when it comes to copyright and investigate issues of moral rights and cultural heritage through the lens of historical precedent, non-western perspectives, and broader social practices.
American Indian Art and Copyright
Kluge-Ruhe occupies a unique position as the only museum in the United States dedicated to Indigenous Australian art and recognizes the strengths and weaknesses of copyright legislation and policies of both countries. In the United States, American Indian artists and communities have long shared similar experiences as Indigenous Australian artists and communities, including invasion and expulsion from ancestral homelands, forced acculturation into Eurocentric society, repression of cultural knowledge and traditions, and misappropriation of art and design.
Like Indigenous Australians, American Indians artists may create visual art based on communally held cultural knowledge that cannot be attributed to one specific creator or group of creators. American Indian artists and communities also seek ways to protect their traditional knowledge. Like Australian laws, legislation in the United States does not recognize communal intellectual property. Additionally, the limited duration of copyright protection under the law prevents perpetual protection of American Indian traditional designs.
In 1990, Congress passed an act to extend protection to American Indian art and cultures. Congress reworked the Indian Arts and Crafts Act of 1935 (IACA) to create the Indian Arts and Crafts Board, which was intended to prosecute companies that were misrepresenting American Indian cultures. This act was designed to protect both contemporary and future works. Unfortunately, the Board has seldom been used. There has never been a case of an American Indian community prosecuting a company through the IACA. Its vagueness and lack of enforcement have left many artists and communities searching for other protections. Today, the IACA is used to grant a mark of authenticity to American Indian artworks.
Though copyright laws do not fully protect Indigenous artists and communities, Kluge-Ruhe encourages everyone working with Indigenous art to not only follow legally enforceable standards, but also adopt policies and precedents that respect communal intellectual property and cultural heritage.
- American Indian Law Review (1996)
- Australia Council for the Arts: Protocols for Working with Indigenous Australian Artists
- Australian Copyright Act of 1968 with Moral Rights Amendment of 2000
- Australia’s National Human Rights Actions Plan
- A Guide to the Visual Artists Rights Act
- Indigenous Art Code
- Indigenous Cultural Protocols
- United Nations: Protection of the Heritage
- United States Copyright Act of 1976: