Art Commission Agreement Template (Australia)

Who owns the copyright — and why a portrait is different

The general rule under the Copyright Act 1968 is that the author of an artistic work owns the copyright in it. Commissioning and paying for a work does not change that, so a client normally receives only the rights the contract grants.

There is a significant Australian exception. Where a person makes an agreement for valuable consideration for the taking of a photograph for a private or domestic purpose, the painting or drawing of a portrait, or the making of an engraving, the commissioning party owns the copyright — the opposite of the general rule and the opposite of the position in the United States and the United Kingdom. A private or domestic purpose covers things like a portrait of family members, a wedding party or children.

Two further points make this practical rather than academic. Where the commissioner owns the copyright under that exception but told the artist the purpose for which the work was commissioned, the artist may restrain the doing of acts for other purposes. And the operation of these ownership rules can be excluded or modified by agreement — which is exactly what a commission contract is for.

This template therefore asks what kind of work is being commissioned and prints the correct starting position, then lets the parties choose to change it. An Australian portrait painter who assumes they keep copyright because an American template said so has assumed wrong; an Australian client who assumes they own the copyright in a commissioned mural has assumed wrong in the other direction.

Moral rights: consent, not waiver

Moral rights were introduced into the Copyright Act 1968 in 2000 and sit in Part IX. They are personal and inalienable: they belong to the creator, cannot be sold or transferred, and continue to exist even when someone else owns the copyright.

Crucially, Australian law has no waiver mechanism. What it has instead is consent: it is not an infringement of a moral right to do or omit to do something if the act or omission is within the scope of a written consent given by the author or their representative, and the consent has to specify the acts or omissions, or classes or types of acts or omissions, to which it relates. A consent obtained by duress or by false or misleading statements has no effect.

The practical consequence is that an imported clause reading "the artist waives all moral rights" achieves nothing in Australia. This template replaces it with a properly scoped written consent: the client identifies the specific acts it needs consent for — cropping for a particular format, reproducing without the credit in a specific context, adapting for a stated medium — and the artist consents to those and no others. It is switched off by default, because a consent should be a negotiated term rather than boilerplate.

The resale royalty the contract must leave alone

Australia has a resale royalty scheme for visual artists, introduced by the Resale Royalty Right for Visual Artists Act 2009. The royalty is 5% of the sale price on a commercial resale of an original work of visual art where the resale price is $1,000 or more, and it applies to resales through the secondary market rather than to private sales.

The point that matters for drafting is that the right is inalienable and cannot be waived. An artist cannot give it up, sell it or transfer it, other than in limited circumstances such as on death. So a commission agreement that purports to assign or waive the resale royalty, or that promises a client royalty-free resales, is promising something the law does not allow.

This template notes the scheme so both sides know it exists, records the artist's details so a future auction house or dealer can identify them, and deliberately does not attempt to deal with the right. A translated American contract would say nothing about it, because the United States has no comparable federal scheme.

Standard form contracts, cancellation and AI

If you use this document as a standard form contract with consumers or small businesses, the unfair contract terms regime applies to it. Since November 2023 it has been illegal not just to include an unfair term in a standard form consumer or small business contract, but to apply or rely on one, with substantial penalties attached. A small business for this purpose is one employing 100 or fewer people or with annual turnover under $10 million — which is most commissioning clients an artist deals with.

That shapes the drafting. Terms that let one side vary the price or the specification unilaterally, cancel without consequence while binding the other side, or cap liability in a lopsided way are the kind of terms the regime targets. This template keeps the cancellation, revision and liability provisions symmetrical for that reason: the client may cancel and pay for work done plus a stated fee, and the artist who cannot continue refunds the unearned fee and returns the client's material.

Approvals get a deadline rather than a mood — a stated number of days to respond to a draft, after which it is treated as approved — and revisions are a number rather than the word reasonable. The client warrants it may supply its reference material and indemnifies the artist for claims arising from it, because an artist's originality warranty is worthless if the brief itself was infringing. And an optional clause restricts using the artwork or process files to train or fine-tune machine-learning systems, off by default because it is a term to negotiate rather than slip past a client.

Clause-by-clause guide

Specification of the artwork

Type, subject, style and references, medium, dimensions or format, and the client's intended use — the intended use also matters for the ownership rules, so it is a term rather than a note.

Work type and copyright starting position

Whether the work is a portrait, a private or domestic photograph or engraving, or another kind of artwork, because the default owner differs.

Timeline, drafts and approval window

Start and delivery dates, milestones, and a stated number of days for the client to respond to a draft before it is treated as approved.

Revisions

A stated number consistent with the agreed specification, with anything changing scope, style, subject or intended use treated as a new request.

Fee, deposit, GST and late payment

Total fee, deposit retained once work starts, when the balance is due, whether amounts include GST, payment days and an interest rate.

Delivery, freight and risk

For physical work, who packs, who freights, who insures and when risk passes. For digital work, formats, resolution and whether working files are included.

Copyright and grant of rights

Confirms or modifies the statutory starting position, then grants a non-exclusive licence, an exclusive licence or an assignment, each on payment in full.

Purpose restriction

Where the client owns copyright in a commissioned portrait or private photograph, records the purpose made known to the artist, which the artist may rely on to restrain other uses.

Moral rights and credit

The credit line as a contract term, and any consent to specified acts or omissions written out — because Australian moral rights are consented to, not waived.

Resale royalty note

Records that a commercial resale of $1,000 or more may attract the 5% royalty, that it cannot be waived, and how the artist can be identified later.

Reference material and indemnity

The client warrants it may supply the references and covers claims arising from them.

Cancellation and AI restriction

A symmetrical cancellation route with a stated fee, and an optional restriction on machine-learning training.

Australian legal checklist

Copyright, moral rights and consumer-law points that shape every Australian commission.

• Check who owns copyright before you draft the grant

  The author generally owns copyright in an artistic work, but where a person agrees for valuable consideration to the taking of a photograph for a private or domestic purpose, the painting or drawing of a portrait, or the making of an engraving, the commissioning party owns it. The operation of these rules can be excluded or modified by agreement.

  Copyright Act 1968 (Cth) - full text, Federal Register of Legislation

• Record the purpose where the client owns a commissioned portrait

  Where the commissioner owns copyright under that exception and the purpose was made known to the artist, the artist may restrain the doing of acts for other purposes. Putting the purpose in the contract preserves that protection.

• Use a written consent, not a waiver, for moral rights

  Moral rights under the Copyright Act are personal and inalienable and cannot be transferred. It is not an infringement to do something within the scope of a written consent by the author, which must specify the acts or omissions, or classes of them, to which it relates. A consent procured by duress or by false or misleading statements has no effect.

  Arts Law Centre of Australia - moral rights

• Leave the resale royalty alone

  The resale royalty is 5% of the sale price on a commercial resale of an original work of visual art at $1,000 or more, and the right is inalienable and cannot be waived. A contract cannot validly assign it or promise royalty-free resales.

  Resale Royalty Right for Visual Artists Act 2009

• Watch the unfair contract terms regime if this is your standard form

  Since November 2023 it is unlawful to include, apply or rely on an unfair term in a standard form contract with a consumer or a small business, with substantial penalties. Small business here means 100 or fewer employees or annual turnover under $10 million.

  ACCC - a guide to unfair contract terms for businesses

• State the GST position

  Say whether the fee includes GST and whether the artist is registered, and issue a tax invoice where required. Ambiguity here is the most common first-invoice dispute on a commission.

• Cover the client's reference material

  An originality warranty from the artist protects nobody if the brief was infringing. Have the client confirm it may supply the references and indemnify the artist for claims arising from them.

• Deal with AI training expressly

  Decide in the contract whether the client may use the artwork or process files to train or fine-tune machine-learning systems, or permit others to. Silence leaves it to be argued about later.

How to complete this commission agreement

1. Say what kind of work it is. Choose portrait or private photograph, or another artwork, so the document prints the correct copyright starting position.
2. Specify the artwork and the schedule. Enter the subject, style, medium, dimensions and intended use, then the dates, milestones, revisions and the days allowed to approve a draft.
3. Set the fee, deposit and GST. Enter the total fee, deposit, when the balance is due, payment days, interest rate and whether amounts include GST.
4. Choose the grant of rights. Confirm or change the statutory starting position, then pick a non-exclusive licence, an exclusive licence or an assignment and write out the uses, media, territory and term.
5. Set credit, consent and extras, then sign. Enter the credit line, decide whether any moral-rights consent is needed and scope it, switch the AI restriction on or off, then download and sign.

Frequently asked questions

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