Choose Your Poison Carefully

As is usually the case, it started with a phone call from an annoyed artist to her representative body, the National Association for the Visual Arts (NAVA). She had just entered work in a competition but on reading the small print guidelines she had stumbled on what she felt was a breach of ethics. She described a participatory project organised between Hewlett Packard and the Melbourne public art gallery, the Australian Centre for Contemporary Art (ACCA) with the tongue in cheek title, 'My Work Is In The Australian Centre For Contemporary Art'.

On the surface it seemed innocuous enough. Artists could email an artwork from anywhere globally to a state-of-the-art Hewlett Packard machine installed in the gallery, and watch it print live via a webcam. Basically Hewlett Packard was gaining profile for its newest technology through a deal with a prestigious contemporary art space where every artist dreams of having their work shown.

But…reading the project conditions revealed the hitch. If they were selected to participate in the project, participants “granted to Hewlett Packard (and its representatives, agents, successors, assigns and licensees) a non-exclusive, perpetual, non-revocable, transferrable, world-wide, royalty-free licence, from the date the work was submitted via the email address or the HP Website, to use in any way whatsoever (including to publish, reproduce, communicate to the public, broadcast and otherwise exploit):

(a)   your File;

(b)   your Work;

(c)   your likeness;

in connection with the Project and for any related or ancillary purpose, in all media, whether now known or subsequently invented, throughout the world, including offline, online/internet, the HP Website, marketing and promotional communications and collateral, public relations releases and/or articles, industry awards, conferences and trade expos”.

Phew! That was an extremely far-reaching set of permissions. What it meant for the creator was that the company or their mates could use in a large variety of ways the artist’s name or portrait, disassociated from the artwork or vice versa. In the first instance the artist’s identity might be used as a product endorsement. In the second, the artwork would not be attributed and thus the artist could gain no credit from public recognition of their work. At the very least, these conditions were contravening moral rights law.

In addition, after a year of almost limitless use, the sponsors Clemenger and HP said they would: “do everything within their power to remove the Artwork from websites…however, (they) will not be obligated to remove the Artwork from any third party websites that are not within (their) control, or that (they) do not have the power to remove”. Given the viral environment of the web, all control by the creator of the work would be lost.

As the peak body representing the professional interests of the Australian visual arts, craft and design sector, we felt it important enough to follow up. Things happened very quickly over the course of 24 hours.

We first wrote to ACCA drawing their attention to what we felt was putting them in a conflict of interest position as a body dedicated to promoting the work and best interests of artists. ACCA responded saying that there were two different sets of conditions: one for interested participants from the general public; but a different one for ‘professional artists’, which they sent to NAVA. This was not as draconian in its impositions as the conditions for ‘non-professionals’.

NAVA responded immediately suggesting that the artists’ agreement should be the one used for all submissions whether by a professional artist or any other participant in the project. We also said that moral rights should be observed and the agreement should have an additional clause that warranted that Hewlett- Packard would not use the work or license others to use the work or the artist's name for any purpose not closely connected with the project. So that they were made fully aware of the conditions which applied, we said that people wanting to submit works should be required to agree to the conditions before they proceeded to send in a work to the project.  We affirmed that of course it would be up to the gallery and the project organisers to make their choice of what should be exhibited from amongst the works submitted. However, we advised that if Hewlett-Packard wanted to use works for any other purpose, they should warrant that they would negotiate a licence and payment.

The word was getting around the artworld and ACCA was sounding worried. NAVA was getting more phone calls from other concerned artists and arts bureaucrats. A journalist was tipped off by some artists and an article appeared in the Age newspaper the following morning. Within a very short time the decision was made by the organisers to close down the project.

This was not an ideal outcome. The original complainant and NAVA shared our disappointment that a position had not been satisfactorily brokered which would have seen the sponsor understand and agree to abide by arts industry standards of best practice. It could have been a good example for others. But you win some you lose some! I’m not sure which category this one fell into.

Tamara Winikoff

Executive Director

National Association for the Visual Arts (NAVA)