FAQS

Aurelian Lawyers & Advisers® is an art law and advisory firm that provides innovative legal solutions for art and collectibles.

We proudly represent high-net-worth individuals, family offices, families, creatives and corporates based in Australia and internationally.

In 2019 Aurelian Lawyers & Advisers (formerly Guest Work Agency) founded an offshoot business, the Guest Club, a subscription-based art advisory service and membership network for art lovers and collectors.

Aurelian is run by director and founder, Alana Kushnir. Alana is an art lawyer and curator with a strong interest in how the law and technology intersect with the creative industries, particularly art. She is a regular contributor and speaker in the art field in Australia and overseas.

Aurelian’s services include specialised legal and strategic advice on art-related transactions and disputes.

Our advisory work spans a wide spectrum of expertise, including:

• Negotiating and drafting of agreements for artwork acquisitions, private and public art commissions, licensing and brand collaborations, artwork loans and consignment, gallery representation.

• Providing legal advice on resale royalties, title and authenticity disputes, Personal Properties and Securities Register, export licensing, artwork financing, copyright infringement, trade mark registration, privacy and consumer law issues.

• Drafting and reviewing website terms and conditions, letters of demand, privacy policies, disclaimers and regulation-required statements.

• Entity structuring, asset management and estate planning advice.

We are proud to work with a diverse group of artists at all stages of their career across a broad range of mediums, from painting and sculpture, to photography and video, to digital art and installations.

Although we are based in Australia, we work with artists both nationally and worldwide.

Where possible, we prefer to offer a fixed fee for our services. Alternatively, if we can’t establish the length of time providing our services will take, we offer our services at hourly rates. We offer a 10% discount for artists and non-profits.

We accept payment in fiat and cryptocurrency.

Art lawyers provide advice on a wide range of legal issues relating to the creation and commercialisation of art works and the art marketplace. These range from drafting and negotiating contracts, protecting and defending intellectual property and copyright through to dispute resolution advice.

Unlike some other types of lawyers, art lawyers are unique as their legal expertise covers a broad spectrum of different specialisations and they also require a solid understanding and interest in the art world and all of its intricacies.

We would always recommend being proactive in seeking legal advice. Whether you are an artist, gallery, art tech start up or museum, you should reach out to a lawyer when you are entering into a commercial agreement of any kind (such as the commission of a new artwork, the consignment of an artwork to a gallery or the setting up of an online platform for displaying and selling art). A specialist art lawyer can map the various relationships involved, and guide you on what contracts should be prepared to set out the terms of the arrangement (avoiding differing expectations and miscommunications down the track).

There is also a lot of confusion about who owns what creative content, and who has the right to use it. An art lawyer can help you understand the ins and outs of copyright law and advise you on how to protect your intellectual property.

An art lawyer also plays an important role in estate planning for artists. If you’re an artist, having your will drafted by an art lawyer who understands the importance of preserving your work and legacy is essential.

Read more in our blog When you should hire an art lawyer.

There are a number of different types of contracts which may be appropriate for you to have in place.

If you are considering signing with a gallery or just having one exhibition, it’s important that you set clear parameters around your relationship with the gallery. A Gallery Representation Agreement is a vital mechanism to establish your rights and obligations with a gallery and helps ensure that everyone is on the same page.

Are you thinking of consigning your artworks to a gallery? A Consignment Agreement is a contract between an artist and a gallery where the artist provides the gallery with artworks that the gallery can sell on the artist’s behalf. Traditionally, the gallery agrees to sell the artwork in exchange for receiving a commission on the sold price. Artists often make these agreements verbally so they don’t miss out on an opportunity to work with a gallery. We understand that the idea of having a Consignment Agreement can feel like overkill, however, like a Representation Agreement, a written Consignment Agreement can help you establish and rely on the payment structure, marketing and insurance obligations.

A Commission Agreement may also be useful to you. This contract sets out the terms for a commissioned artwork and often involves multiple parties such as fabricators, sound producers and photographers. For Commission Agreements, having a contract which clearly establishes the responsibilities of each party is vital.

What do you sell when you sell an artwork? Do you retain the copyright, can you reproduce the work? How and when will you get paid? An Artwork Sale Agreement governs the relationship between an artist and a purchaser. It helps answer these questions and clears up any uncertainties if the relationship deteriorates.

Art law in Australia is a unique area of legal practice niche, and only a small number of firms have deep understanding and experience in advising on  legal issues affecting the art market, artists, and cultural institutions. One of the leading dedicated practices in this space is Aurelian Lawyers & Advisers (formerly Guest Work Agency). The firm specialises in art law and luxury asset practices, advising collectors, artists, and family offices who operate globally. 

Art lawyers typically advise on issues such as intellectual property, like licensing, copyright and trade marks, artist contracts and commissions, import and export regulations, and transactions involving luxury assets and cultural property. 

NFTs can give rise to fundamental legal questions around intellectual property ownership and rights such as “When you buy an artwork, what do you own? And what rights do you have in relation to that work?”

Other legal issues include having transparent terms of service in place for NFT marketplaces available to users before they sign up. These terms are important as they help users to understand the risks involved in interacting with a certain platform, as well as minting, buying and selling NFTs. Inconsistent terms of use may give rise to consumer law issues such as misleading and deceptive conduct.

Read more about legal issues and NFT in a Lawyers Weekly interview with Alana Kushnir: NFT market sees ‘innovative’ dealmaking, but also a ‘lack of standardisation and transparency’.

There are currently many different types of processes, or ‘AI techniques’ being used by artists in the production of artworks. Some artists are writing their own algorithms and creating custom-made data sets using original works in which they own the copyright. On the opposite end of the spectrum, some artists are using AI text to image generators such as DALL-E 2 and Midjourney.

In Australia, as is the case in all common law jurisdictions, one of the fundamental tenets of copyright law is the requirement of human authorship for a work to be protected by copyright. At this stage, it is unclear whether outputs from AI text to image generators are protected by copyright. It is also important to read the terms of service of AI text to image generator platforms before using them, as these terms stipulate what rights the platform and the user has to their outputs.

We recently wrote about How Artificial Intelligence is Challenging the Law’s Approach to Art for the Intellectual Property Law Bulletin here.

When it comes to public art, the traditional commissioning relationship between commissioner and artist rarely occurs today. Not only will the commissioner and artist be involved, but so too will other individuals and stakeholders who bring the artwork to life.

Parties to the contract could be the artist’s gallery, the architect of the site, the developer, the project manager, the artwork fabricator or the guarantor, for example. There may need to be more than one contract in place to address all of the parties involved.

Public art commission arrangements are also unique from a contractual perspective because they can encompass all (or some) of the varying life phases of an artwork.

You should consider not only who is involved, but what each party is responsible for and how a contract can be used to hold each party accountable for their obligations under the commissioning arrangement.

Read our blog about public art commission contracts for more information.

Copyright is a type of intellectual property (IP). IP is an umbrella term for rights which protect intangible expressions of the human mind. Other types of IP include patents, trade marks and designs.

In Australia, copyright is regulated by the Copyright Act 1968 (Cth). Copyright is automatically granted to authors of original literary, dramatic, musical, and artistic works. Copyright provides creators with certain exclusive rights, such as the rights to reproduce and to communicate to the public by electronic means (such as uploading to a website), as well as to licence and assign (transfer) those rights.

In Australia, in order to make out claim of copyright infringement under the Copyright Act 1968 (Cth), you must first establish whether the work which is the subject of the alleged copying is protected by copyright. Secondly, you must establish whether the alleged infringer used a “substantial part” of your original work, which is a test of quality, not quantity. You must also be able to establish that the alleged infringer directly copied your original work and not merely that the works are stylistically similar.

Where the works are stylistically similar, but there is no direct copying involved, you may be able to make out a claim for misleading and deceptive conduct under the Australian Consumer Law or the tort of passing off.

If you believe that someone is copying or ripping off your artwork, it is important to seek legal advice as early as possible, and before you choose to voice your concerns on social media.

Since copyright is personal property, it can be transferred to another person by assignment. An assignment enables the original copyright owner to transfer their ownership of copyright to another person. The assignment must be in writing and signed by the assignor in order to be recognised under Australian copyright law.

A copyright licence does not transfer copyright to another person. It gives a person permission to use someone’s copyright under certain conditions. The licence can either be made expressly – in writing or verbally – or it can be implied by conduct. For example, if you are a designer who's been engaged to design a logo for a client, then by nature of the service you are providing the client, it would generally be implied that the client has permission to use your copyright in the logo

Copyright assignments and licences can also be geographically limited. For example, a licence might be limited to use of the copyright within Australia. They can also be limited to certain specific copyrights; for example, they could be limited to the right to reproduce the copyright-protected subject matter, and they might also be limited so that the licensee cannot sublicense or transfer the licence to someone else.

The most sensible way to set up a copyright assignment or a licence is to speak to a legal professional so that the transfer or permission is legally binding, and the conditions can be tailored to your interests.

Aurelian has developed automated Contract Builders with circumstances like these in mind. If you are collaborating with fabricators, assistants or others on your creative project and want to ensure that you own the copyright, you may be interested in purchasing our Copyright Assignment Deed here.

Copyright protects expressions of the mind, being the expression of ideas in a material form. This means that copyright does not protect ideas – and to that end, curatorial ideas – but rather, the way in which those curatorial ideas have been expressed in a material form, be it on paper, in a digital document, in a voice recording, and so on. For example, an exhibition concept might not itself attract copyright protection, unless it is expressed in a material format. Similarly, an essay theory or argument might not itself attract copyright protection, but the catalogue essay as expressed in material form could be considered a literary work and attract copyright protection on that basis.

There are other areas of law, outside of intellectual property (or ‘IP’ for short), that could help protect your curatorial ideas, such as the breach of confidence cause of action. Breach of confidence is not a part of intellectual property law, but a pseudo-cousin of sorts. In order to succeed in bringing a cause of action for breach of confidence, the information must have a quality of confidence and it must not already be public knowledge. The information needs to be given in circumstances which import the obligation of confidentiality, such as a confidential conversation. Unfortunately, pitching your exciting exhibition idea to your friends at a party, or even a lecture room, is unlikely to cut it. The best way you can impress the confidentiality of your curatorial project, is to have the person who you're pitching it to sign a Confidentiality Deed before you share anything with them.

Aurelian specialises in art law, and has extensive experience in creating estate plans for artists and art collectors.

We look after the legal, strategic and administrative aspects of preserving artists' and art collectors' legacies during their lifetime and following their death. This may involve preparing an estate plan, drafting a will, and appointing powers of attorney.

Aurelian also drafts special legal instruments that can be particularly useful for art estate planning, called testamentary trusts. In addition, we create artwork inventories and catalogues and arrange for independent evaluations.

Our services also include assisting our clients in probate applications and overseeing the distribution of assets. We also prepare business strategies following an artist's death, like taking care of licensing arrangements.

For artists and art collectors, it’s essential that your plans for your estate account for the unique art aspects of your estate. If you’re a practicing artist, you leave behind quite a unique estate when you die. It may comprise of your existing stock, archive material, and copyrights, amongst other personal and real estate assets.

If you have digital assets, like non-fungible tokens (NFTs) and cryptocurrency, this should also be considered in your planning.

Because of the unique nature of artist estates, the process of accounting for and distributing your assets can be complex. Dealing with this can place an unnecessary burden on your loved ones after your passing. You can ease this burden by putting in place an estate plan.

Under Australian copyright law (and the copyright laws of other jurisdictions like the UK), the copyright duration for artistic works, like painting and sculpture, generally lasts for 70 years after the author’s death. This means that after you die, the owner of your copyright would have the exclusive right to sell and licence your copyright during those 70 years. Have you considered who you want to own and administer your copyright after you die?

Where an artwork is resold on the secondary market after your death, you may also be entitled to statutory resale proceeds for the length of the copyright in the artwork. Have you considered who you want to receive those sale proceeds after you die?

These are important questions for all artists to consider as part of the estate planning process.

For artists and art collectors, the earlier you start considering the estate planning process, the better. After a complimentary initial consult with us, we will prepare your bespoke estate plan and include a list of steps for you to take in actioning your plan.

To start the estate planning process, contact Aurelian Lawyers & Advisers by emailing info@aurelian.art for an initial consult.

Art archives document the activities and decisions of artists, collectors and organisations. They provide a way of collating and systematising original documents that can come in multiple formats, both physical and digital material.

An art archive makes accessing the source material of an artist or collection easy and straightforward given that all material is located in one place and is logically organised.

The purpose of an art archive is to ensure artistic legacy and to provide proof of provenance. Provenance is the record of ownership of an artwork that can help in art historical investigations, cataloguing and valuations.

Art archives also preserve the historical and cultural value of an artwork, the entire backstory behind the artwork, and the artist who created it.

Art archiving is an important exercise in physically maintaining your artworks and their related information. The role of an art archivist is to provide advice as to how to properly protect and preserve your collection for the longevity of your artwork as well to facilitate this process.

Aurelian has first-hand experience in the management and organisation of art archives. We provide tailored advice for our clients both in their physical and digital archiving needs.

We advise as to the leading inventory management platforms and online digital authenticity record systems in order to define which solutions are the best fit for you and what will serve your needs moving forward.

Art archiving is also an important step in estate planning. To learn more about Aurelian’s estate planning services, see our estate planning FAQs.

Family offices typically invest across a diversified mix of traditional and alternative assets, balancing capital preservation with long-term growth and intergenerational planning. 

For many families, philanthropy is a good option when deciding to move from a financial engine to investing in charitable or legacy-building initiatives. Legally, philanthropic vehicles are often established through trusts or foundations and therefore form a significant part of succession planning. These structures can also support tax efficiency and broader estate optimisation.  

In Australia, one of the most common dedicated structures is the ancillary fund. The Australian Charities and Not-For-Profits Commission describes ancillary funds as special-purpose funds that link donors to organisations endorsed as deductible gift recipients, distinguishing between private and public ancillary funds.  

For many family offices, working with specialised art lawyers, tax advisors, and archivists ensures your collection is managed in a way that aligns with both wealth strategy and cultural stewardship. 

Read our blog post about family offices and the role of art.

When buying art internationally, purchasers should consider the following: 

• export and import laws: artworks may require export permits or be subject to cultural heritage restrictions. 

• shipping, insurance, and risk allocation: contracts should clarify responsibility if the artwork is damaged or lost in transit. 

• governing law and dispute resolution clauses in terms of sale. 

For high-value acquisitions, legal counsel typically coordinates with art advisors, valuers, insurers, logistics providers, and tax specialists to manage cross-border risks. 

Investment in art and luxury assets can be treated as a unique diversification opportunity within a portfolio, however it does carry distinct legal risks that differ from traditional asset classes such as shares or property. These risks arise from factors such as attribution, authenticity and regulatory frameworks, which can significantly impact the value and ownership of art and luxury assets. 

Key legal issues to consider include: 

• attribution and authenticity risks 

• export and cultural heritage restrictions 

• tax and regulatory exposure 

• ownership and contractual protections 

Engaging legal professionals is essential to navigating these complexities. Lawyers can assist with due diligence, including verifying authenticity and provenance, advising on compliance with export and cultural heritage laws, reviewing purchase agreements and warranties, and structuring ownership arrangements to safeguard investments.   

By addressing these legal considerations, investor can better manage the risks associated with art investments while preserving the value and integrity of their portfolios.  

Yes, invoices for purchased artworks should ideally include terms of sale to ensure clarity and avoid disputes. The inclusion of such terms is particularly important in the context of artworks, as they often involve unique considerations such as provenance, authenticity and specific conditions of sale.  

The terms of sale should the following key aspects: 

• detailed description of the artwork 

• price, including any applicable taxes, and payment schedule and method 

• delivery and risk of loss or damage 

• warranties regarding authenticity, condition or provenance of the artwork 

• if applicable, resale royalty obligations 

• if applicable, copyright license rights 

• retention of title, if the seller wishes to retain ownership until full payment is made 

Lawyers are essential for drafting and reviewing terms of sale for artworks, to provide legal clarity and help manage expectations and reduce the likelihood of disputes. 

Purchasing an artwork generally gives you ownership of the physical object, but it does not automatically transfer the copyright or other intellectual property rights which may be relevant to the artwork. This distinction can surprise buyers, as ownership of the artwork and ownership of the underlying intellectual property are separate legal rights.  

As the owner of an artwork, you are typically able to treat it as per any other type of private property – you can include it in your personal collection, display it, lend it and  sell it or gift it. However, activities such as reproducing the artwork in publications, creating merchandise using images of the artwork, licensing images of the artwork, or using it for commercial purposes may require permission from the artist first or the copyright holder. 

If you wish to use the artwork in ways beyond personal enjoyment or display, you should seek legal advice to explore options such as obtaining a copyright licence or negotiating an assignment of the copyright to the artwork, where appropriate. 

When deciding between selling an artwork at auction or through private resale, it is essential to consider the legal, financial and practical differences between these two avenues. 

Selling an artwork at auction generally involves a public bidding process, typically conducted by an auction house. The sale is completed when the auctioneer announces its conclusion, usually by the fall of the hammer. Auctions are governed by specific rules, such as the prohibition of undisclosed bidding by the seller unless explicityly reserved in the conditions of sale.  Breaching these rules can render the sale fraudulent. Additionally, auction sales often involve buyer’s premiums and vendor commissions, which can significantly affect the net proceeds for the seller. For example, buyer’s premiums can range from 20% to 25%, while vendor commissions are generally lower, and sometimes even waived for exceptional artworks. 

Private resale involves a direct transaction between the seller and the buyer, often facilitated by an art dealer, consultant, gallery or auction house. This method allows for greater discretion and privacy, as the details of the transaction, including the identity of the buyer and seller, are not publicly disclosed. However, this lack of transparency can sometimes lead to issues, such as disputes over provenance or authenticity.   

Private sales may also involve lower transaction costs compared to auctions, as there are no buyer’s premiums, and commissions can be negotiated. This method is often preferred for artworks with a well-documented provenance and a specific target audience.  

The choice between resale avenue depends on the specific circumstances of the artwork, including its value, provenance, and the seller’s priorities regarding transparency and costs. Sellers should carefully evaluate these factors and may benefit from consulting legal and art market professionals to determine the most suitable sales avenue. 

The steps involved in donating an artwork, and the relevant legal considerations, varies from jurisdiction to jurisdiction.  

In Australia, the Cultural Gifts Program offers tax incentives to encourage people to donate cultural items to public art galleries, museums, libraries and archives. Entities are generally eligible to receive gifts of property where the entity is owned or controlled by a government entity or makes its collection publicly available. The institution’s governing documents must align with its character as a public institution.  

Bear in mind that the artwork must be accepted by the institution for inclusion in its collection, and that most eligible museums have strict acquisition policies. Artworks proposed for donation are typically reviewed by curators and acquisition committees to determine whether they align with the institution’s collection strategy, provenance standards, and conservation capacity.  

Donors may generally claim a tax deduction for the GST inclusive market value of the artwork, as determined by two independent valuers. Donations made under a will or made by executors of deceased estates are not tax deductible and do not qualify for the program. 

The institution must formally accept the gift into its permanent collection, while the donor must ensure that the gift is unconditional, meaning the museum has full custody, control and ownership of the artwork without restrictions.  

Legal professionals can assist at several stages of the process including advising on an appropriate museum, facilitating introductions, drafting the deed of gift (or deed of promised gift where relevant) and advising on tax considerations. 

Read our blog post about the practice of Buy-One-Give-One. 

The monetary value of an artwork is often determined by a combination of factors, including the artist’s market reputation, style and size of the piece, recent auction results, exhibition history, provenance, and the condition of the artwork. 

Professional valuers, auction houses, galleries, and art advisors can provide market-based valuations based on comparable sales and current demand for the artist. 

Several legal issues should also be considered when determining how much to pay for an artwork. These include considering resale royalty obligations, verifying the authenticity and provenance of the artwork, understanding copyright ownership, respecting cultural and ethical considerations (especially for Aboriginal art) and ensuring compliance with laws against misleading or deceptive conduct. These steps will help mitigate legal risks and ensure compliance with the law.