DEALER FOCUS: Image use and attribution – getting it right

This information is for guidance only. It is not legal advice.

The sale and promotion of art is an intrinsically visual business. Images are widely used by dealers to promote artists and their work, increasingly so in the digital space. While the printed catalogued or marketing brochure still play a role in promoting Indigenous visual arts, websites, blogs, and social media are now often where images are most frequently and widely shared and accessed.

Getting it right is important. The IartC requires that Dealer Members gain permission before using or circulating images of an artist’s work on social media, your website, or any other purpose. When images are used, they need to be thoroughly and accurately attributed.

Gaining permissions for image use and correct image attribution addresses two important legal principles:

1. Copyright

2. Moral rights

Copyright

Most dealers are familiar with the principles of copyright.

Arts Law Centre of Australia provides the following information, which is helpful to think about:

A copyright owner has the right to control how the work is used regardless of whether or not you make money from it or credit the creator. The copyright owner may grant you permission to use their work, but you have to ask first! And anyway, crediting the creator is a legal requirement, unless it is reasonable not to.

This means as a dealer you need to expressly gain permission from artists you work with to share images of their work for the purposes of promoting your business and their artwork. This may be on a case-by-case basis through an image licence or through a written agreement you have in place with particular artists regarding your entire commercial relationship.

If you don’t have an established relationship with the artist in question, you need to seek permission and license the use of the artist’s work before sharing it online or using it in any way. Just because it exists on the internet doesn’t mean it is free for you to use.

As the Arts Law Centre of Australia puts it:

Material protected by copyright in the physical world is equally protected in the digital environment. Therefore, you cannot use images, music, articles or other materials from the internet without the permission of the copyright owner.

Read more from Arts Law about Copyright here.

Moral rights

Moral rights are personal rights that connect creators to their work. Moral rights arise automatically and last as long as copyright, i.e. 70 years after the death of the author. They are

the right of attribution: your right to be identified and named as the author of your work;

the right against false attribution: your right to prevent others to be identified and named as the author of your work; and

the right of integrity: your right to ensure that your work is not subjected to derogatory treatment, i.e. in any manner harmful to your honour or reputation.

This means there is a legal requirement for you to attribute an artist’s work fully and accurately (after you have gained permission to use it) whenever and wherever it is published.

Clause 2.3 (a) of the Code also clearly stipulates Dealer Members’ obligations regarding:

respecting the Artist’s Moral Rights and copyright in the Artwork, and obtaining the consent of the Artist before reproducing the Artwork (or permitting a third party to reproduce the Artwork) in any form

When crediting an image, the IartC suggests you include the artist’s full name, the title of the artwork, the year the work was created and the copyright holders’ and/or photographer’s name at a minimum. This is the information requested when you upload images to your IartC profile.

Here is an example:

Jakayu Biljabu, Wikiri, 2014 © Jakayu Biljabu/Copyright Agency 2022. Photo: Martumili Artists.

You can also include the medium and the dimensions of the work when relevant or possible.

Here is an example:

Jakayu Biljabu, Wikiri, 2014, 106 x 152cm acrylic on linen © Jakayu Biljabu/Copyright Agency 2022. Photo: Martumili Artists.

Respecting artists’ copyright and moral rights is not only a legal requirement but the very minimum you can do to demonstrate respect for their art and culture.

Make sure you get it right.

Acknowledgement of Country

The Indigenous Art Code acknowledges the traditional owners and custodians of Country throughout Australia and recognises their continuing connection to the land, sea and community. We pay our respects to them and their cultures; and to their Elders past, present and future