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INDIGENOUS ARTIST AND ART CENTRE AGREEMENT

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WHEN TO USE THIS AGREEMENTThis sample INDIGENOUS ARTIST AND ART CENTRE AGREEMENT should be used when an Indigenous artist (Artist) provides works of art (Artwork) to an Indigenous Art Centre which represents the Artist in relation to the Artwork.

Under this sample agreement an Artist enters into an arrangement with an Art Centre operated for the benefit of the Indigenous artists it represents (such as a centre run by a Land Council or an Indigenous Corporation) where the Artist creates Artwork at or with the assistance of the Art Centre and agrees that the Art Centre will sell the Artwork on commission and deal with sales, agreements and business matters on behalf of the Artist.

This sample agreement includes the most common terms which the Artist and the Art Centre will need to consider and agree to.

This agreement is not suitable for a one-off exhibition or installation.

INDIGENOUS AUSTRALIAN ART COMMERCIAL CODE OF CONDUCTThe Australia Council has produced an Indigenous Australian Art Commercial Code of Conduct (Indigenous Art Code) that is available on its website at www.australiacouncil.gov.au. This sample agreement assumes that the Art Centre will be a signatory to the Indigenous Art Code and has been drafted to reflect the requirements imposed by the Indigenous Art Code.

This sample agreement will operate as an “artwork proposal” document. If you use this sample agreement, you will not need a separate “artwork proposal” document in order to comply with the Indigenous Art Code.

If the Art Centre is not a signatory to the Indigenous Art Code you need to delete clauses 2 and sub-clause 4.1(g) of the agreement. After deleting clause 2 of the agreement, please ensure that this deletion does not affect any of the other numbering in the agreement. The agreement should progress from clause 1 to clause 3, without any reference to a clause 2. The Art Centre still needs to be familiar with the Indigenous Art Code because clause 11 requires the ‘Complaint’s Coordinator’ to be familiar with, and to comply with, the duties required of a ‘Complaint’s Coordinator’ under the Indigenous Art Code. The Indigenous Art Code also provides guidance as to the types of details that should be included in an Agent’s Report (see clause 7).

HOW TO USE THIS AGREEMENTThis agreement is a sample only. You need to change the document to meet your specific circumstances.

This sample agreement is designed so that all of the information which you need to add is contained in the schedules. In other words, if the terms of the sample agreement suit your circumstances, you only need to include your specific details in Schedule 1 and Schedule 2.

2/tt/file_convert/5b3fff227f8b9a91078cc344/document.docArtist and Art Centre Agreement

© Arts Law Centre of Australia 2008

http://www.australiacouncil.gov.au/

At times you need to choose from an alternative that is appropriate for the agreement you want to make. Alternatives are written in the schedules in this form:

Artist/Art Centre

At other times you need to insert information such as names, dates or descriptions that are specific to the agreement you are making. Where this is necessary you will be prompted by an expression in square brackets like this:

[NAME]

Where numbers have been inserted, for instance stating the number of days of a notice period, you can choose one of the numbers or replace the numbers stated by a number of your choice. Ensure the number chosen is appropriate and realistic with regard to the parties’ situation.

This sample agreement might also include instructions above clauses to which they relate. The instructions are in square brackets like this:

[OPTIONAL: DELETE IF YOU DO NOT USE …]

STEP 1Read the accompanying Explanatory Notes.

STEP 2Ensure that the agreement is appropriate for your purpose. If you are unsure, you can contact Arts Law for advice.

STEP 3Fill in the details for Schedule 1 and Schedule 2. You need to create a document. You can do this on your computer or you can handwrite the schedules and complete all of the details. You do not have to include the pictures in the schedules; – they are in the sample agreement to help everyone understand what the schedules mean. Remember to remove the symbols and to make your choices if needed or insert information when required. Delete all instructions from the agreement.

STEP 4Print out or photocopy pages 1 to 5 of the sample agreement (not the Explanatory Notes). These five pages form the first part of your agreement and do not require any changes. After the first five pages add the schedules which you have typed up or handwritten. Your agreement should end with a space for signatures under the heading ‘Executed as an Agreement’.

STEP 5Get the draft agreement reviewed. If you subscribe to Arts Law we may arrange to have your agreement reviewed. It is a good idea to have your draft agreement reviewed if you are unsure whether it meets your requirements or if you have altered it in any way.

STEP 6If you are a signatory to the Indigenous Art Code, ensure you have provided a copy of the Code to the Artist before they sign the agreement.

3Indigenous Artist and Art Centre Agreement © Arts Law Centre of Australia 2010

OTHER INFORMATION

INDIGENOUS CULTURAL AND INTELLECTUAL PROPERTY (ICIP)If an artist or art centre (or gallery, exhibitor, publisher etc.) intends to create, or deal with, a work that incorporates, is sourced from or refers to, Indigenous objects, knowledge or works, ICIP should be considered. The term ‘ICIP’ refers to Indigenous peoples’ interests in their cultural heritage, which includes songs, music, dances, stories, ceremonies, symbols, languages and designs. ICIP is a communal rather than an individual interest. The artist who uses ICIP in artwork may have duties and obligations to his or her community or tribal group in respect of that ICIP and the way it is used. ICIP is not recognised under Australian law but Arts Law believes it is important that it is acknowledged and respected.

The sample agreement requires a notice to accompany any Artwork containing ICIP. The ICIP Notice makes purchasers of the Artwork aware that permission should be obtained from the traditional owners before dealing with the Artwork. The form of the ICIP Notice is set out in Schedule 1.

The Australia Council for the Arts has produced a set of protocols including Visual Arts: Protocols for Producing Indigenous Australian Visual Arts that are available free. These protocols can be ordered through, or downloaded from, the Australia Council’s website www.australiacouncil.gov.au or obtained from the Aboriginal and Torres Strait Islander Arts Board, Australia Council, Telephone: (02) 9215 9061 or email [email protected].

Additional protocols include Arts Tasmania’s Respecting Cultures: Working with the Tasmanian Aboriginal Community and Aboriginal Artists designed as a companion text to the Australia Council’s protocols providing a specific Tasmanian perspective. It can be downloaded from the Arts Tasmania website www.arts.tas.gov.au or telephone: (03) 6233 7308, free-call: 1800 247 308 or email: [email protected]. The ABC’s online portal to Indigenous Australian information on the web ‘Message Stick’ contains an Indigenous protocol site designed ‘to assist journalists, filmmakers, producers and documentary makers to understand the importance of abiding by Indigenous Protocols’. Message Stick protocol guidelines are available from www.abc.net.au/message/proper. Screen Australia, the former Australian Film Commission, is developing A Guide to Protocols for Filmmakers Working with Indigenous Content and Indigenous Communities a draft of which is currently available on Screen Australia’s website at http://www.screenaustralia.gov.au/filminginaustralia/.

NAVA’S CODE OF PRACTICE FOR THE VISUAL ARTS AND CRAFT SECTORThe National Association for the Visual Arts (NAVA) have produced a Code of Practice for the Visual Arts and Craft Sector (Code of Practice). The Code of Practice provides practical and ethical guidelines for the conduct of business between visual and craft artists and their galleries, agents, retailers, buyers, sponsors, commissioners and the managers of residencies and workshops and competitions, prizes and awards. The Code of Practice is available on the NAVA website at www.visualarts.net.au. To find out more, contact NAVA or the Australia Council (www.australiacouncil.gov.au).

USEFUL READINGS Arts Law Centre of Australia, Artists In The Black Information Sheets Copyright,

Contracts, Moral Rights and Indigenous Culture and Intellectual Property



http://www.visualarts.net.au/

http://www.screenaustralia.gov.au/filminginaustralia/

http://www.abc.net.au/message/proper

mailto:[email protected]

http://www.arts.tas.gov.au/

mailto:[email protected]


Arts Law Centre of Australia, Information Sheet Protecting Your Ideas – the Law of Confidential Information

Arts Law Centre of Australia, Information Sheet Contracts – An Introduction

Arts Law Centre of Australia, sample Artist and Gallery Agreement

Arts Law Centre of Australia, sample Sale of Artwork Agreement

Arts Law Centre of Australia, sample Gallery and Touring Agency Agreement

Catherine Fargher and Seth Richardson, The Arts Insurance Handbook, A Practical Guide for Artists and Art Organisations, 2nd ed, Arts Law Centre of Australia, 2005

Copyright Council Information Sheets including – Moral Rights, Copyright in Australia – An Introduction, Artworks available at www.copyright.org.au

VISCOPY website at www.viscopy.com. VISCOPY is the copyright collecting agency for all owners of copyright in Artistic works, including illustrators, painters, cartoonists, photographers, sculptors and multimedia owners. VISCOPY can also assist in locating Artists to obtain permission to reproduce work and advise on the appropriate copyright rates payable.

NEED MORE HELP?Contact Arts Law if you have questions about a sample agreement or want your agreement reviewed.

Telephone: (02) 9356 2566 or toll-free outside Sydney 1800 221 457

Also visit the Arts Law website for articles and information sheets www.artslaw.com.au

HELP US TO HELP YOUArts Law exists to assist low-income creators and organisations like you with legal matters. We provide cheap sample agreements so that you can protect and promote your creativity. The income we earn from selling these sample agreements is essential for us to keep providing this assistance to creators.

If you are the original purchaser you can use this sample to draft an agreement. Otherwise, except as permitted by the Copyright Act 1968 (Cth), you need permission from Arts Law if you want to copy, reproduce, distribute or communicate this sample agreement to any other person.

If you do any of the above without permission, you will be infringing our copyright. You will also be making it harder for Arts Law to help you and other creators protect your interests.


Arts Law acknowledges the support of the Commonwealth Government through the Australia Council for the Arts and the Department

of the Environment, Water, Heritage and the Arts

Arts Law thanks Heather Charlton, Tjukurba Art Gallery, Wiluna WA for allowing the use of her paintings of an artist and art centre in its sample contract.


EXPLANATORY NOTES

USING THE EXPLANATORY NOTESThe Explanatory Notes give information about some of the clauses in this sample agreement, or the law involved.

The Explanatory Notes DO NOT form part of the document and should not be included in your final redrafted version. It may be useful to separate the Explanatory Notes from the actual document when you are redrafting it for your particular situation.

The Explanatory Notes are not legal advice as they provide general information only. You can contact Arts Law for specific legal advice.

SUMMARY OF PRINCIPAL TERMS IN SCHEDULE 1 Art Centre: Include the name and details of the Art Centre.

Artist: Include the name and details of the Artist.

Art Centre Commission: What portion of the sale price will the Art Centre receive? Will the Art Centre take less if the Artwork is sold through another gallery?

Other Gallery Commission: What commission can another gallery charge in addition to the commission being charged by the Art Centre?

Term: How long does the agreement between the Artist and Art Centre last?

Relationship: Is the Artist going to be able to deal directly with other galleries or buyers (non-exclusive) or will the Artist only be able to sell Artwork through the Art Centre (exclusive)?

Time for Artist’s Payment: How soon after it gets paid for an Artwork will the Art Centre make payments to the Artist?

Interest on Late Payments: What interest will the Art Centre pay on late payments to the Artist?

Intellectual Property: These important clauses deal with copyright licensing of the Artist’s Artwork, the Art Centre’s right to use photos of the Artist and the Artist’s Artwork.

Indigenous Cultural and Intellectual Property Notice: The Art Centre must ask the Artist whether an Indigenous community’s cultural knowledge is part of the Artwork. If it is, the Art Centre must include an ICIP Notice warning anyone who uses the Artwork that the Artwork contains Indigenous cultural knowledge and that they may need permission from the Indigenous community which keeps that cultural knowledge before using the Artwork. Insert the name of the Artist’s community or tribal group into this section.

Complaints Coordinator: Insert the name of the Art Centre’s Complaint’s Coordinator. The Art Centre’s Complaint’s Coordinator should familiarise themselves with the duties imposed under the Indigenous Art Code.


Governing Law: Insert the state or territory in which the Artist lives or the Art Centre is located.

PARTIESThe persons or organisations who enter into an agreement are called the parties. The parties to this agreement are the artist and the art centre and their names, addresses and preferably their telephone, fax numbers and email addresses should be clearly set out in Schedule 1. In the rest of the agreement, the parties are referred to as ‘Artist’ and ‘Art Centre’ because this is easier.

If a party has an ACN (Australian Company Number) or ABN (Australian Business Number) or ARBN (Australian Registered Body Number) the number must be included. The ABN is also important for GST purposes.

If either party is a company, its ACN and the address of its registered office must be stated.

DEFINITIONS (CLAUSE 1)This agreement has some important defined terms in clause 1 and in the body of the agreement. Those defined terms are used consistently throughout the agreement to help make the meaning of certain words more clear. If words use capital letters in the sample schedule then you should use capital letters when you type or write those words for your version of the schedules.

The definition of Artwork varies depending on whether the relationship between the Artist and Artist Centre (as set out in Schedule 1) is nominated as exclusive or non-exclusive. Set out the details of any Artwork covered by the agreement in Schedule 2. If the relationship between the Artist and Art Centre is exclusive, the agreement will apply to all Artwork created by the Artist while the agreement is in effect. If the relationship is non-exclusive, the agreement only applies to any Artwork which the Artist creates at the Art Centre or gives to it for sale. The Artist may create other works and sell those separately. Most Artist/Art Centre agreements are exclusive. In an exclusive relationship, the Art Centre is encouraged to work much harder to promote and develop the Artist’s reputation.

If the Artist has some pre-existing works created before the parties entered into this agreement, and wishes those works to be covered by the agreement, the works should be itemised in Schedule 2.

ARTWORK PROPOSAL / INDIGENOUS ART CODE (CLAUSE 2)The Art Centre is obligated under clause 7(4) of the Indigenous Art Code to provide a copy of the Indigenous Art Code to the Artist before entering into any artwork agreement with an Artist. As a matter of caution, Arts Law suggests that the Art Centre sign this agreement after the Artist to avoid any suggestion that the Art Centre ‘entered into the agreement’ before providing a copy of the Indigenous Art Code. Clause 2.1 can only be satisfied if a copy of the Indigenous Art Code has been provided to the Artist before the Artist signs the agreement.

The Indigenous Art Code also makes it necessary for Art Centres to provide a written statement to the Artist setting out the main terms of the agreement, known as an ‘artwork proposal’. By providing a copy of the agreement to the Artist (as noted in clause 2.2), the Art Centre fulfils this requirement.


If the Art Centre is not a signatory to the Indigenous Art Code, please refer to the instructions above under the heading ‘Indigenous Australian Art Commercial Code of Conduct’ as to the changes to make to the agreement.

RESALE ROYALTY AND COPYRIGHT LICENSING (CLAUSE 3)

The Art Centre can assist the Artist to register with Copyright Agency Limited, the collecting society responsible for the collection of resale royalties under the Resale Royalty for Visual Artists Act 2009 and must also file all necessary commercial resale notices which the Act requires.

The Art Centre may register the Artist with a copyright collecting society such as Viscopy or CAL or Aboriginal Artists Agency Network. These bodies grant licenses of visual artworks and collect royalties. CAL collects statutory royalties when an artwork is reproduced by government or educational institutions. Viscopy and Aboriginal Artists Agency Network arrange for licensing of the artworks of its members and collect royalties for the Artist when an artwork is licensed.

Any money received from a collecting society for an Artist must be paid in full to the Artist. The Art Centre cannot deduct any commission.

TERM, AGENCY, SALES, COMMISSION, CONSIGNMENT, CHANGES TO THE AGREEMENT (CLAUSE 4)The agreement starts on the date it is signed by both the Artist and the Art Centre. If the agreement is signed by the Artist and Art Centre on different days then the agreement starts on the day the last person signed it (see clause 4.1 in conjunction with Schedule 1). The agreement continues until it is terminated under clause 11. Alternatively, if the parties wish to enter into an agreement for a set period of time, an end date can be inserted into Schedule 1.

Clause 4.2 makes it necessary to nominate whether the relationship is exclusive or non-exclusive in Schedule 1. These concepts are explained above (see Explanatory Notes for clause 1).

Clause 4.3 sets out how payment to the Artist works. The Art Centre must pay the Artist’s portion of the money from a sale to the Artist within the period specified in Schedule 1 (for example 30 days). The Indigenous Art Code recommends that payment be made within 30 days but this is not mandatory, so the parties can specify another period in Schedule 1. The Art Centre can agree with the Artist to make the payment by instalments or over a longer period for reasons of financial management. If payment is not made by the agreed date, the Art Centre has to pay interest on top of the amount owing (clause 4.5).

The Art Centre’s Commission is the percentage of the sale price which the Art Centre keeps when it sells one of the Artist’s paintings. The agreed rate must be inserted into Schedule 1. Often Indigenous Art Centres charge a higher commission than other commercial galleries. This takes into account the fact that Indigenous Art Centres provide a higher level of services to member artists, in particular the provision of art materials and studio space.

The Art Centre can provide any Artwork to other galleries on a ‘consignment’ basis’ (see clause 4.4). This means that the other gallery will try to sell the Artwork and, if the Artwork is not sold after a set period of time, the gallery will return it to the Art Centre.


The gallery taking the work on consignment will take a commission from the money it receives for any sale. The maximum commission rate which the other gallery may charge must be specified in Schedule 1.

The Art Centre may agree to reduce its own commission where Artworks are sold by other galleries. If so, this can be stated under Art Centre Commission in Schedule 1.

Clause 4.4 does not specify all the terms which would be included in any commission agreement between the Art Centre and a third party art gallery. The Art Centre is, however, obligated to act in the best interests of the Artist when negotiating such agreements.

This agreement does not require the Artist to pay commission on prize money, or royalties paid by copyright collecting societies (including resale royalties) nor does it provide for the Art Centre to receive any commission where there is a donation of Artwork. The agreement needs to be amended if it is intended that a commission will be paid on prize money or donations.

Clause 4.6 requires any changes to this agreement to be in writing signed by both parties. This prevents a party arguing that an agreement was varied orally.

ART CENTRE’S DUTIES (CLAUSE 4)Clause 5 sets out the obligations imposed upon the Art Centre. The Art Centre represents the Artist in the sale of Artworks and also provides advice, promotes the Artist, catalogues the Artworks etc. The Art Centre is responsible for any damage that may occur to any Artwork whilst it is in the control of the Art Centre; the Art Centre has ‘control’ of the Artwork for the purposes of insurance from the moment the Artist delivers the Artwork to the Art Centre. The Art Centre’s control extends to any consignment arrangements reached with other galleries. Accordingly, the Art Centre is responsible for maintaining adequate insurance of the Artwork.

Please make sure these services are consistent with the practice of the Art Centre and ensure that the Art Centre is able to fulfil those obligations. The agreement is designed for Art Centres which provide canvases and art materials to their Artists at no cost as well as a place to create Artworks. The Art Centre must be a signatory to the Indigenous Art Code in order to provide an Indigenous Australian Art Commercial Code of Conduct Certificate under clause 5.1.g

Clause 5.1.b makes it clear that the Art Centre is not required to obtain approval from the Artist before entering into Art Dealings on the Artist’s behalf, provided the Art Dealings fall within the terms of the agreement and the Artist is kept informed of the Art Dealings.

ARTIST’S DUTIES (CLAUSE 6)The Artist agrees to deliver any Artwork to which the agreement relates to the Art Centre.

Where the Artist has an exclusive relationship with the Art Centre, the Artist cannot sell Artworks through any other person or organisation during the Term of the agreement. Clause 6.2 makes it clear that the Artist must not enter into any agreements similar to this one with any other parties and must not sell any Artworks except through the Art Centre. There is no obligation on the Artist to provide a certain quantity of Artworks under the agreement, nor are there any timeframes imposed upon the Artist for the completion of Artworks.


GOODS AND SERVICES TAX (GST) (CLAUSE 7)The parties to the agreement must consider their obligations in relation to tax and other statutory fees and charges.

The Goods and Services Tax (GST) is a general tax on goods and services supplied in Australia. Most supplies in the art business made for ‘consideration’ (eg money or payment in kind) are subject to GST unless the person providing the goods or services (such as a painting, paints or a canvas) is not registered for GST.

This clause states that payments and prices are exclusive of GST. If a party has to pay GST, they can add the GST amount to a payment.

You should obtain specific professional advice on your GST and tax position and obligations under this contract and generally.

For more information contact the Australian Taxation Office on 13 28 66 or visit the website www.ato.gov.au. In addition, the Australia Council for the Arts has published ‘Artefacts: the Arts and Tax – a practical tax workbook for the arts sector’ which can be downloaded free from the Australia Council’s website www.australiacouncil.gov.au

RECORD KEEPING AND REPORTING (CLAUSE 8)Clause 8 requires the Art Centre to keep proper records and to provide regular written reports to the Artist regarding the Artwork (Agent’s Report). Clause 8 also sets out the rights of the Artist to request an Agent’s Report. For information as to what should be included in an Agent’s Report, see the Indigenous Art Code.

TITLE, COPYRIGHT AND MORAL RIGHTS (CLAUSE 9)Clause 9 confirms that the Artist owns all intellectual property rights in the Artworks. Intellectual property includes copyright.

This agreement assumes the Artist is the copyright owner. However, this must be checked. For example, if the Artist created an Artwork as an employee, the employer is likely to be the copyright owner. The Artist may also have transferred copyright to someone else. For further information see the Australian Copyright Council’s Information Sheet 'Ownership of copyright'.

If the Artist is employed as part of a Community Development Employment Project (CDEP), it is important that this agreement expressly states that copyright in Artworks is retained by the Artist.

In clause 9.3, the Artist gives the Art Centre the responsibility of managing the Artist’s copyright in the Artworks in order to promote the Artist. The details as to how the Art Centre can do that are set out in Schedule 1. The Art Centre is permitted to photograph or reproduce the Artworks for the purpose of publicising and promoting the Art Centre, the Artist or the Artist’s artwork.

INDIGENOUS CULTURE AND INTELLECTUAL PROPERTY (CLAUSE 10) ICIP is discussed in more detail above. Clause 10 requires the Art Centre to use an appropriate Notice of Custodial Interest. The form of that notice is set out in Schedule 1.

TERMINATION AND COOLING OFF (CLAUSE 11)Clause 11 sets out the circumstances when the agreement can be ended:

within the cooling off period (14 days of entering into the agreement) by the Artist;



http://www.ato.gov.au/

on 3 months notice by either party;

if the Artist dies;

if the Art Centre becomes insolvent or bankrupt;

if a party doesn’t act in accordance with its obligations under the agreement and the problem cannot be resolved after following the procedure in clause 10.

When the agreement ends, the Art Centre may sell any Artworks in its possession and retain its commission, unless the Artist terminated the agreement within the cooling off period. The Artist does not have a right to take back possession of Artworks already delivered to the Art Centre, unless the cooling off period applies. Upon termination, all money due to the Artist must be paid as soon as possible and the Art Centre must stop representing the Artist. The Artist can then choose a new art centre to represent them if they wish. However, the former Art Centre retains the right to sell any Artwork that the Artist made for it before the agreement was ended.

Clause 11.4 sets out the form and how any notices must be given. In the event that the Artist passes away, the Art Centre must consult with the Artist’s family and they should attempt to reach agreement about a suitable mourning period before using the name or image of the Artist or making the Artworks available for sale or display.

COMPLAINTS AND DISPUTES (CLAUSE 12)Clause 12.1 assumes that the Art Centre has a complaints handling system in place and appoints a Complaints Coordinator. The parties must insert the name of the Complaints Coordinator in Schedule 1. For further information as to the obligations of a Complaints Coordinator and a complaints handling system, please see clause 20 of the Indigenous Art Code.

It is almost never worth going to court to resolve a dispute, but not every problem can be solved easily. Clause 12.2 provides that the parties must use Arts Law’s mediation service to attempt to resolve a dispute or disagreement. In comparison with litigation and arbitration, mediation is an informal and less expensive dispute resolution process, in which an independent person helps the parties in conflict to formulate their own solution. Contact Arts Law for further details.

GOVERNING LAW (CLAUSE 13)Clause 13 concerns the appropriate governing law for the agreement. This needs to be inserted into Schedule 1. This is particularly important if the agreement is between people in different states or different countries where laws may vary.

SIGNING THE AGREEMENTIf you are an individual, sign your name and write in the date of signing where indicated at the bottom of the agreement and at the bottom of each page of the Schedule. This is sometimes called ‘executing’ the agreement.

If you are signing on behalf of a company or association, you must consult the organisation’s rules and relevant laws to determine who is authorised to sign. It may also be necessary to stamp or ‘affix’ the document with the company or association’s seal if this is required under its constitution or articles of association.

If there is a change to the agreement at the last minute before signing, you can either retype the agreement, or make the change in handwriting and have each party initial


next to the change before signing at the end. You may also wish to initial each page to make sure no new pages are inserted after you have signed, but this is not strictly necessary.

It is also a good idea to number the pages.

If someone else is signing on behalf of either party as their agent, you should insert the following sentence into the signature section:

‘I am the authorised agent for…’

If any of the parties is under the age of eighteen, their parent or legal guardian will need to sign the agreement ‘on behalf’ of the child. This does not mean that the parent or legal guardian becomes a party to the agreement in his or her own right.

KEEP RECORDS OF YOUR AGREEMENTSigning the agreement is evidence that you agreed to what is written there. You will usually be bound to perform the agreement as it is written. For this reason it is a good idea to get the same number of originals of the agreement as there are parties to it, which are signed by all parties. Each party then keeps a fully signed copy. At the very least, however, make sure you have a copy of the original agreement so that you can remember what you have signed.



THIS AGREEMENT IS MADE BETWEEN:

The art centre identified in Schedule 1 (Art Centre)

AND

The artist identified in Schedule 1 (Artist)

THE PARTIES AGREE AS FOLLOWS:

1. Definitions

1.1. In this agreement, unless the context requires otherwise:

Art Dealings means any sale, business, agreement or administrative matter that relates to any Artwork.

Artwork means any of the works described in Schedule 2.

Intellectual Property means any copyright, trademark, moral rights, or other rights existing in the Artwork, including any applicable statutory resale royalty right, but does not include rights in the physical property of the Artwork.

2. Artwork proposal / Indigenous Art Code

2.1. The Artist acknowledges receipt of a copy of the Indigenous Australian Art Commercial Code of Conduct (Indigenous Art Code) from the Art Centre.

2.2. This agreement is an artwork proposal for the purposes of the Indigenous Art Code.

3. Resale Royalty and Copyright Licensing

3.1. The Art Centre must:

a assist the Artist to claim any resale royalty due under the Resale Royalty Right for Visual Artists Act 2009 (Cth) (Resale Act); and

b file with Copyright Agency Limited any notices of commercial resale and other supporting information required under the Resale Act.

3.2. The Art Centre may register the Artist with a copyright collecting society such as Viscopy and/or Copyright Agency Limited.

3.3. Within 30 calendar days of receiving any licensing fees, statutory royalties or resale royalties due to the Artist from any collecting society, the Art Centre must pay those fees or royalties in full to the Artist.

4. Term, Agency, Sales, Commission, Consignment, Changes to Agreement

4.1. The term of this agreement is specified in Schedule 1 (the Term).


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4.2. The parties acknowledge that the Art Centre becomes the agent of the Artist for the Term and represents the Artist on the basis of the Relationship specified in Schedule 1.

4.3. Upon receipt of money from any sale of Artwork, the Art Centre must retain the Art Centre’s Commission (at the rate specified in Schedule 1) and pay the balance to the Artist within the period specified in Schedule 1.

4.4. The Art Centre may provide Artwork to other art centres or galleries (Other Gallery) for sale on consignment at the commission specified in Schedule 1.

4.5. The Art Centre must pay interest on late payments to the Artist at the rate stated in Schedule 1.

4.6. This agreement may only be modified by a written amendment signed by the parties.

5. Duties of the Art Centre

5.1. During the Term, the Art Centre must:

a promote the Artist and the Artwork and represent the Artist in all Art Dealings;

b inform the Artist of all Art Dealings. The Art Centre is not required to seek the Artist’s approval of each contract or other arrangement that may be negotiated in accordance with this agreement;

c provide the Artist with reasonable access to a secure environment in which the Artist can create and store Artwork;

d give the Artist canvases, paint and other materials for the purpose of creating Artwork at no cost to the Artist;

e catalogue, label and record the Artwork;

f establish the appropriate retail value (exclusive of GST) for each Artwork in consultation with the Artist and not discount the retail value without the Artist’s written consent;

g upon the sale or supply of each Artwork with a value in excess of $250.00, provide a certificate that complies with clause 13 of the Indigenous Art Code;

h recognise and acknowledge the Artist in all promotional events and materials, and provide the Artist with a copy of any such promotional materials;

i ensure that the Artwork is displayed, offered for sale and reproduced in a culturally appropriate manner;

j whilst the Artwork is in its possession or control, be liable for any damage that may occur to the Artwork and for the cost of repairs. The Art Centre must give the Artist the first option to repair the Artwork;


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k take out and maintain adequate insurance against loss, damage, theft and destruction of the Artwork; and

l at all times act in the best interests of the Artist, and exercise all care, attention and skill in all Art Dealings.


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6. Duties of the Artist

6.1. During the Term, the Artist must deliver the Artwork to the Art Centre.

6.2. Where the relationship specified in Schedule 1 is exclusive, the Artist must:

a inform the Art Centre as soon as possible after Artwork has been created;

b not enter into any similar agreement, understanding or arrangement with any other person or entity;

c not sell or give the Artwork to anyone other than the Art Centre.

7. Goods and Services Tax

7.1. The parties agree that all amounts payable under this agreement are exclusive of Goods and Services Tax (GST).

8. Record keeping and reporting

8.1. The Art Centre must maintain accurate records regarding Artwork in its possession or control and must provide regular written reports to the Artist, in at least six monthly intervals, detailing receipt of Artwork, sales of Artwork and promotional activities undertaken (Agent’s Report).

8.2. Within 14 calendar days of the Artist’s request, the Art Centre must provide an up-to-date Agent’s Report. If any discrepancy is established in favour of the Artist upon receipt of the Agent’s Report, the Art Centre must pay the Artist the deficit amount within 14 calendar days.

9. Title and Intellectual Property

9.1. The Artist retains title in the Artwork at all times prior to sale.

9.2. The Artist owns all Intellectual Property in the Artwork.

9.3. The Art Centre will manage the Artist’s Intellectual Property on behalf of the Artist as specified in Schedule 1.

10. Indigenous Culture and Intellectual Property (ICIP)

10.1. If an Artwork embodies traditional ritual Indigenous knowledge, the Art Centre must display the notice set out in Schedule 1 in a reasonably prominent position with the Artwork.

10.2. Nothing in this agreement transfers or excludes any applicable cultural rights in favour of Australian Indigenous people that may be implemented under Australian law.


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11. Termination and cooling off period

11.1. The Artist may terminate this agreement within 14 days of entering into it without the need to give any reasons (cooling off period), and if this occurs:

a the Art Centre must not require the Artist to pay any fees, charges, penalties, compensation or other costs;

b the Artist has a right to and must take possession of all unsold Artwork; and

c the Artist is entitled to keep any payments made to the Artist or due to the Artist under this agreement.

11.2. Either party may terminate this agreement without the need to give any reasons by giving the other party 3 months written notice that the agreement is to be terminated.

11.3. If a party commits a breach of this agreement, the other party must notify the party in breach of the breach in writing. The party in breach must remedy the breach within 28 calendar days of the notice (Notice Period). If the breach is not remedied at the expiry of the Notice Period, the party who gave the notice may terminate this agreement immediately by written notice. If an exhibition of any Artwork commences during the Notice Period, termination will take effect from the date of the close of the exhibition.

11.4. A notice required to be given under this agreement may be delivered by hand, or sent by pre-paid post or fax to the address of the party indicated at the top of this agreement.

11.5. The agreement automatically ends:

a upon the death of the Artist;

b if the Art Centre becomes insolvent, is declared bankrupt, has a liquidator appointed or goes into administration, voluntary or otherwise.

11.6. Upon the death of the Artist:

a The Art Centre must take all reasonable steps to;

i withdraw all unsold Artwork held by the Art Centre from sale and store it securely; and;

ii cease all use of the name or image of the Artist;

pending consultation with the Artist’s family, community or estate as to the appropriate time when the Artwork may be exhibited, promoted or offered for sale again.

b the Art Centre must consult with the executor or administrator of the Artist’s estate before selling any Artwork or making any payments pursuant to this agreement.


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11.7. Unless the Artist terminates this agreement under clause 11.1, upon termination or expiry of this agreement:

a the Art Centre will retain possession of all unsold Artwork and is entitled to its commission on any sales;

b subject to clause 11.6, the Art Centre may exhibit and sell the Artwork in its possession, including through any other gallery;

c the Arts Centre must pay all payments due to the Artist as soon as possible to the Artist or the Artist’s Estate as appropriate; and

d all rights granted by the Artist to the Art Centre under this agreement otherwise immediately revert to the Artist.

12. Complaints and Disputes

12.1. All complaints made by the Artist will be dealt with by the Art Centre’s Complaints Coordinator specified in Schedule 1 in accordance with the Indigenous Art Code.

12.2. If a dispute or disagreement arises between the parties in connection with this agreement (Dispute), neither party may start any litigation or arbitration in relation to the Dispute until the parties have mediated the dispute according to the Arts Law Centre Mediation guidelines.

13. Governing law

13.1. This agreement is governed by the law in force in the jurisdiction specified in Schedule 1. The parties submit to the jurisdiction of the courts of that State and any court competent to hear appeals from those courts.


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SCHEDULE 1

Principal Terms


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ART CENTRE[NAME, ABN] of [ADDRESS, TELEPHONE, FAX, EMAIL]

ARTIST[NAME, ABN] of [ADDRESS, TELEPHONE, FAX, EMAIL]

ART CENTRE COMMISSION

[NUMBER] % of the payment received by the Art Centre from the purchaser in a sale of an Artwork exclusive of any GST[OPTIONAL: DELETE IF YOU DO NOT USE] Where the Artwork is sold by any other gallery on a consignment basis, the Art Centre’s Commission is reduced to [NUMBER]%

OTHER GALLERY COMMISSION

[NUMBER] % or such other amount as is agreed by the Artist in writing

TERMThis agreement commences on the date on which the last party signs the agreement and continues until terminated in accordance with clause 10.

RELATIONSHIP[exclusive/non-exclusive]

TIME FOR ARTIST’S PAYMENT

No later than [30 OR OTHER AGREED NUMBER] calendar days after the sale by the Art Centre or the receipt of payment by the Art Centre from another gallery or as otherwise agreed with the Artist


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INTEREST ON LATE PAYMENTS

[NUMBER]% p.a. payable on demand and accruing daily from (and including) the date any unpaid amount is due until the amount is paid in full

INTELLECTUAL PROPERTY

1. The Art Centre has the non-exclusive right to photograph the Artist and the Artwork (Photos) or otherwise copy or reproduce or publish the Artwork or the Photos to promote the Art Centre, the Artist or the Artwork.

2. The Art Centre may sub-license the rights granted to it in paragraph 2.

3. The Art Centre must display a copyright notice that includes the Artist’s name, the copyright symbol and the year that the Artwork was created accompanying all reproductions of the Artwork; and on or adjacent to each Artwork on display.

ICIP NOTICEThis artwork embodies traditional ritual knowledge of the [NAME] Community. It was created with the consent of the custodians of the Community. Dealing with any part of this artwork for any purpose that has not been authorised by the custodians is a serious breach of the customary laws of the [NAME] Community. For enquiries regarding permitted uses of this artwork, contact [NAME].

COMPLAINTS COORDINATOR

[NAME] or his or her successor as appointed from time to time.

GOVERNING LAW[STATE OR TERRITORY OF RESIDENCE OF THE ARTIST].


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SCHEDULE 2

ARTWORK

If the relationship is exclusive, Artwork means any artistic works including works of artistic craftsmanship created by the Artist during the term of this agreement.

If the relationship is non-exclusive, Artwork means any artistic works including works of artistic craftsmanship created by the Artist during the term of this agreement and provided to the Art Centre.

[DELETE THE FOLLOWING TEXT AND TABLE IF THERE ARE NO EXISTING WORKS] For both exclusive and non-exclusive relationships Artwork includes the following artistic works:

Title Medium Size Retail value Catalogue No

EXECUTED AS AN AGREEMENT:

Signed by the Artist:Signature:

Name (PRINT):

Date:

Signed by an authorised Art Centre representative:Signature:

Name (PRINT):

Date:


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