Spotlight: Arts Law Centre of Australia

Screen shot 2015-02-24 at 4.08.25 PMby Melissa (YoungJae) Koo*

From the Editors: Given that Center for Art Law has been keenly interested in the legal services available to artists not only within the United States, but also around the world, this time we would like to turn our attention to a unique organization in Australia that has been offering legal assistance to a diverse art client base on the other side of the world for more than 30 years.

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Australia has been a unique and dynamic place for art and the art market, albeit often overshadowed by giant markets of the United States, United Kingdom, and France. According to Adrian Newstead, Director of Coo-ee Aboriginal Art Gallery, collecting has been growing in Australia, especially centered around Australian Aboriginal art. The growth of secondary market of art sales backed by escalating online sales and overseas dealerships in Australia is also matched by signs of “revival in primary gallery sales and the spectacular success” of Australian urban artists such as Danie Mellor and Tony Albert. Recently, there is a movement among Australian Victorian art gallery owners to create a national peak body for visual arts galleries, spurred by the scandal over stolen antiquities at the National Gallery of Australia. Such recent reports of Australian art and art market news pose questions on the interests of creators of art in the country, known for its unique landscape especially surrounding the Aboriginal art.

As a not-for-profit, Arts Law Centre of Australia (“Arts Law”) is Australia’s leading independent center for the performing and visual arts, operating out offices in Sydney. Center for Art Law has reached out to Robyn Ayres, Executive Director of the organization via email. According to Ayres, Arts Law has been dedicated to empowering artists and creators, protecting their rights and helping to ensure they are fairly rewarded for their creative work since its establishment in 1983. The organization is akin to several state based nonprofit organizations in the United States that provide pro bono legal services to artists such as Volunteer Lawyers for the Arts in New York or New Jersey Volunteer Lawyers for the Arts, which we featured here.

Funding for Arts Law Centre of Australia comes primarily from various governmental as well as nongovernmental agencies. The Australia Council, the Australian government’s arts funding and advisory body, has been the leading financial backer of the organization. Other governmental sponsors include Australian State and Territory governments through their art agencies, Screen Australia, Department of Aboriginal Affairs WA, Screen NT, and Film Victoria. Non-governmental organizations such as Copyright Agency and Phonographic Performance Company of Australia also help funding for the organization.

According to their recently renewed website, Arts Law mainly provides artists and arts organizations with extensive resources and legal services of the range of arts related legal and business matters including but not limited to contracts, copyright, business structures, defamation, insurance, employment, and taxation. Ayres adds that Arts Law’s primary services are around providing such information for the creative communities through the information hub, which boasts rich in-house information such as a variety of legal information sheets and guides, seminar papers from relevant third parties, for example, the Australian Copyright Council, and sample agreements, case studies, eBooks, and videos to name a few. It also publishes a quarterly newsletter art+LAW.

With the team of 7 full-time and 5 part-time staffers, headed by Robyn Ayres as Executive Director, about 240 pro bono legal practitioners as well as a number of law firms located in all Australian States and Territories assist the organization in the provision of the document review service, and daytime volunteers such as law students, law graduates, and qualified lawyers also assist the team. Ayres stated that Arts Law also has an internship program for periods of 3 weeks to 6 months, which regularly takes interns from Australia as well as around the world including the US, Canada, and France.

Specifically, the organization provides legal advice to artists and arts organizations in two main ways: telephone legal advice sessions, either on pro bono or low bono schedule, and more in depth document review sessions available for subscribers. Similar to US-based volunteer lawyer organizations such as New Jersey Volunteer Lawyers for the Arts mentioned above, before providing legal services, the organization determines financial need of a would-be client through their means test. Individuals or arts organizations who do not meet the means test are asked to subscribe and pay a fee ranging from $140 to $500. Subscribers are entitled to two document review sessions and five telephone legal services in the twelve month subscription period, which are valued at over $4,200 Australian Dollars.

Following example illustrates how the organization’s volunteer lawyers help out artists in Australia. When a sculptor was shocked by a letter sent by a Sydney council asking him to stop working on his commissioned sculpture in front of a public library without getting paid, he contacted Arts Law to find out his rights. Although he communicated with the council about the commissioned work via emails, he did not have any formal written contract with the council. A volunteer lawyer from Arts Law advised him that even though there was no formal written contract between the sculptor and the council, it is likely that a binding contract exists between them from a number of documents, and oral and written conversations. During a document review session, the volunteer lawyer drafted a letter of demand to the council outlining that the council was bound by a contract and that it owed the artist money in exchange for the commissioned sculpture. Consequently, the council paid the outstanding amount to the artist.

Furthermore, the organization also offers dispute resolution mechanisms and referrals to accounting services. Ayres also mentioned that Arts Law provides a variety of educational programming throughout Australia, delivering more than 80 lectures, seminars, and workshops, including a webinar program. It also has been instrumental in developments such as the introduction of resale rights and moral rights in Australia, she added.

Arts Law also has been at the forefront of championing Australian artists’ rights with an extensive advocacy agenda on the basis of its “artists first” policy approach. According to Ayres, Arts Law submitted suggestions for changes to the Designs Act in Australia arguing that artists should not lose copyright protection of the work if it is industrially applied. Also recently in 2014, Arts Law argued against the Australian Law Reform Commission’s report on Copyright in the Digital Economy, which recommended amongst other things that Australia introduce a fair use exception in their Copyright Act, similar to the U.S. Ayres stated that the organization argued against such exceptions as it would “erode artists’ rights and broaden the scope for unlicensed use of artists’ works” and recommended that the “current fair dealing exceptions strike an appropriate balance.” See their response here. Also notably, Ayres stated that Arts Law does not agree with the current Australian resale royalty rights scheme as it is only payable on second sale after the law was introduced, rather than payable on all resales.

Perhaps most uniquely, a special program Arts Law offers is Artists in the Black, which caters specifically to Australian Aboriginal artists and Torres Strait Islander artists and art communities. The name “Artists in the Black” refers to an expression “to be in the black,” meaning to be financially profitable and not in debt, or not “in the red.” Introduced in 2004 after the organization observed overwhelming cases of the “rip-offs and exploitation of Indigenous artists” and realized specialized service for them is in need, the program now consists of 15-20% of the organization’s legal work, showing that the considerable amount of legal service provided by the organization is attributed to serving Indigenous artists and their art community, according to their website. Among other achievements through this special program, in 2013, Arts Law successfully advocated for the repeal of Western Australian intestacy laws, which discriminated against Aboriginal people in the State. According to Ayres, the program has also included advocacy on the world stage at the World Intellectual Property Organization’s Intergovernmental Committee (WIPO IGC) meetings about the “need for an international instrument to protect indigenous knowledge and culture.” Arts Law has also made submissions to the Australian government and contributed to the discussion on the better protection of the Indigenous Cultural and Intellectual Property (ICIP) through reform of legislation.

The Artists in the Black program also promotes a new pro bono program called “Adopt a Lawyer,” which partners Aboriginal and Torres Strait Islander community art organizations with an experienced law firm for a three-year partnership. By creating one-on-one relationships between the Aboriginal art organizations and a single law firm, the organizations in need can directly benefit from more timely access to legal advice from the designated firm, and the law firms can enjoy a closer relationship and understanding of Australia’s Indigenous culture and community. For example, through this program, Mowanjum Aboriginal Art & Culture Centre, which represents artists of the Worrora, Ngarinyin, and Wunumbal language groups, is paired with an international law firm Ashurst. Such a program, specially designed for aboriginals who might not have access to legal and business resources related to their art, is unique to this Australian organization, exemplifying the diversity of Australian artists and the organization’s commitment to all of them.

Arts Law Centre of Australia seems to be one of the few examples worldwide where there is a concerted effort to assist artists in navigating the legal and business realm. Ayres stated that although Arts Law does not have any formal relationships with organizations outside of Australia, it occasionally makes informal referrals to “sister” organizations and works with law firms that have global network for the benefit of Australian artists. She also expressed that the organization would be interested in exploring the possibility of more reciprocal arrangements. In the upcoming Spotlight, Center for Art Law will examine the work of Institute for Art and Law in the United Kingdom and Korean Artists Welfare Foundation in South Korea and Arts and Law in Japan. As Arts Law Centre of Australia continues its work 30 years after inauguration, other countries and attorneys worldwide should take notice and aim to set up similar services for their creative community.

Sources:

About the Author: Melissa (YoungJae) Koo, Legal Intern with Center for Art Law, is a third year student at Benjamin N. Cardozo School of Law, concentrating in Intellectual Property law, especially art and fashion law. She can be reached at youngjae.koo@law.cardozo.yu.edu.

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