Copyright in Visual Art

Josh Philpot
Aug 11
3 min read

What Types of Visual Art Are Protected?

Under Australian law, copyright protects original artistic works, including:

- Paintings

- Drawings

- Engravings

- Photographs

- Sculptures

- Collages

- Architecture

- Graphic designs

- Cartoons and illustrations

- Mixed media or digital art (if fixed in material form)

📜 Legal Reference — Section 10(1) & 32 of the Copyright Act 1968 (Cth):

"Artistic work" includes paintings, sculptures, drawings, engravings, photographs, buildings, models of buildings, and works of artistic craftsmanship.

Who Owns the Copyright?

Generally, the artist is the copyright owner — unless the work was created:

- As part of a job (i.e. under employment)

- Under a contract or commission that assigns copyright to someone else

📜 Legal Reference — Section 35(2), (5) & (6):

"The author of an artistic work is the owner of any copyright… unless the work was made in employment or under specific commission terms."

Important for photographers:

If someone commissions a portrait or private event photo and pays for it, they usually own the copyright, unless you’ve agreed otherwise.

Tip: Always use a written agreement that clearly states who owns the rights to avoid future disputes.

How Long Does Copyright Last?

For visual art, copyright generally lasts for the lifetime of the artist + 70 years after their death.

📜 Legal Reference — Section 33(2):

"Copyright subsists in a work until the expiration of 70 years after the end of the calendar year in which the author died."

What Rights Do Visual Artists Have?

As a copyright owner, you have exclusive rights to:

- Reproduce the work (print, scan, copy, post online)

- Publish or exhibit it (in a book, gallery, merchandise, etc.)

- Communicate it (on websites, social media, or in digital ads)

- License others to use it or sell it

- Stop unauthorised use (including online reposts and merchandise bootlegging)

📜 Legal Reference — Section 31(1):

"Copyright, in relation to an artistic work, is the exclusive right to: reproduce the work, publish it, and communicate it to the public."

What Are Moral Rights?

Visual artists also have moral rights, which are separate from copyright ownership. These include:

- The right to be attributed (credited)

- The right to integrity (not having the work altered, distorted, or treated offensively)

- The right to not be falsely attributed (e.g. someone else taking credit)

📜 Legal Reference — Part IX of the Copyright Act 1968 (Cth):

Moral rights are personal to the creator and cannot be sold or transferred.

Tip: Even if you sell the artwork or assign copyright, you still retain your moral rights.

Common Misunderstandings

- "I paid for it, so I own it." Not necessarily — unless the contract assigns copyright to you.

- "It’s online, so I can use it." No. Copyright exists whether or not a watermark is visible.

- "It’s for education or parody, so I’m safe." Maybe — but fair dealing has strict conditions (we’ll cover this in Post 7).

Aboriginal Visual Art and ICIP

Aboriginal artists often use traditional stories, symbols, and styles passed through generations. Under copyright law, only individual works by identifiable artists are protected.

This leaves communal ownership and cultural knowledge vulnerable unless additional steps are taken.

That’s where Indigenous Cultural and Intellectual Property (ICIP) comes in. It recognises:

- Collective ownership

- Sacred symbols and knowledge

- The right to control how stories and styles are used

Tip: Artists and organisations should follow cultural protocols, get informed consent, and respect ICIP — even if not legally required under the Act.

Final Thought

Whether you work with paint or pixels, your art is valuable. Copyright gives you the power to control how your work is used — and to protect it when needed. But knowing the law is only half the story — clear contracts, moral rights, and cultural respect matter just as much.