Sadly, most Indigenous people die intestate. The Arts Law Centre of Australia's "Artists in the Black" program is helping local artists write their wills, to protect both the reputation of the artist and the artist's copyright in a responsible manner for future generations. Delwyn Everard, senior solicitor at the Arts Law Centre of Australia writes
It's a place where sunrise and sunset are equally spectacular. At dawn, the skies above the flood plain in the shadow of Injalak Hill are suffused in pastels of peach and pale pink. At dusk, the smoke from fires set by local hunters intensifies the vermilions and oranges that blaze across the horizon. This is the Aboriginal community of Gunbalanya in Arnhem Land, also called Oenpelli, where the Arts Law Centre of Australia's "Artists in the Black" program is helping local artists write their wills.
In September 2008, Kyas Sherriff, Indigenous information officer at Arts Law, Lynn Bennett, a partner of Minter Ellison's Darwin office and I spent two weeks at Injalak Arts Centre in Oenpelli and Bula'bula Arts Centre at Raminingining (where Rolf de Heer's Ten Canoes was filmed). It was a fascinating and unforgettable experience. We spent warm days sitting on the ground taking instructions and drawing up complex family trees and long evenings drafting difficult clauses.
In between we experienced true Territory hospitality which included fishing for barramundi in Red Lily lagoon and visiting ancient rock art paintings with artist Wilfred Nawarridj.
We felt privileged to be entrusted by these artists with the responsibility of drafting their wills, humbled by their willingness to accept legal concepts often at odds with their cultural norms, and moved by their unselfish generosity in trying to ensure the financial security of extended family groups for whom they had taken on responsibility.
This was one of a series of such workshops to educate Indigenous artists as to the wisdom and benefits of having a will and to assist them in preparing their wills which have been run by Arts Law in locations ranging from the Kimberley to the Tiwi Islands and the town camps around Alice Springs.
Protecting the artist's copyright and legacy
The impetus came after several Indigenous art centres approached Arts Law for help in dealing with the copyright owned by artists who had passed away intestate. Arts Law's executive director, Robyn Ayres, approached Copyright Agency Limited (CAL), which collects and distributes royalties for the licensed reproduction of artistic works by a range of government, educational, not-for profit and corporate institutions. CAL, too, had grappled with this problem. Who should the royalties be given to? Could it accept offers for new licensing arrangements? With funding assistance from CAL, the Myer Foundation, as well as crucial support from law firms including DLA Phillips Fox and Minter Ellison, Arts Law has now prepared more than 200 wills.
Sadly, most Indigenous people die intestate and the Public Trustee's Offices in the various states and territories have shown little interest in the management of such estates. While many Indigenous artists have few worldly goods when they pass away, copyright in artistic works endures for the life of the artist plus 70 years and has the potential to provide ongoing financial benefits long after the artist is gone.
Indigenous art is a rich and lucrative source of images for clothing, manchester, stationery, and other merchandise. The market both in Australia and overseas for glossy coffee table books on Aboriginal art is booming. If a business wanting to reproduce a visual art work can't find the owner of the copyright, then it will look to alternative artists or - as is not uncommon in the case of deceased Indigenous artists - simply appropriate and use the work without permission, in breach of copyright.
A template for change
Arts Law has now developed a template will for Indigenous artists specifically designed to facilitate the management and exploitation of the artist's copyright for the benefit of the artist's beneficiaries after death.
Copyright is given to a copyright trustee who is empowered to license the copyright to CAL, Viscopy or any other collecting society and distribute the royalties to the beneficiaries of the will. When the resale royalty scheme is adopted in Australia, it will cover those royalties also.
The template also deals with the sale of artworks held on commission by art centres and galleries but still unsold at the date of death.
It is designed to protect and nurture the reputation of the artist after death and to enable the ongoing exploitation of the artist's copyright in a responsible manner for the benefit of the artist's family. Art centres that participate in these workshops will find it easier to continue to promote the work of deceased artists because the will identifies the person or persons responsible for managing the copyright.
Arts Law's wills project is part of the "Artists in the Black" service established in 2004 with funding from the Australia Council to increase Indigenous access to legal advice on arts-related matters. Law firms and students interested in pro bono participation in the Indigenous wills project should contact Arts Law for more information or visit www.artslaw.com.au/Indigenous/.