Administration of the Estate of Albert Namatjira: Copyrights & Wrongs

Albert Namatjira is one of Australia’s most well-known and celebrated Indigenous artists, and the major proponent of the Hermannsburg School. However the administration of his estate by the Northern Territory Public Trustee limited his family’s ability to control and benefit financially from the copyright in his artworks after his death.

Albert took to painting in his 30’s and his work is characterised by soft hues, usually water colours, of the Western Arrernte landscape named the Western MacDonnell Ranges by Europeans. The Hermannsburg School produced art that was more accessible to collectors who were more familiar with western-style landscapes representing a major change of direction for Australian aboriginal art.

In 1957 Albert entered into a copyright licensing agreement with Legend Press, owned by John Brackenreg. Under this agreement Legend Press would pay royalties to Albert in exchange for having the sole right to reproduce his artwork on things such as greeting cards on tea towels and in books. Albert still owned his copyright and, at the end of that licence he could have negotiated higher fees or an alternate agreement.

Albert died in 1959, leaving a will — drafted in 1945 — in which he passed his assets, including the copyright, to his wife and children. He named two executors who renounced probate in favour of the Public Trustee, the authority appointed to administer deceased estates.

Albert’s widow Rubina, who died in 1974, also left a will in the form of a deed of family arrangement, in which she named several beneficiaries.

A deed of family arrangement is an agreement made between the beneficiaries to change the terms of the Will. Usually if the estate was left in unequal shares, the beneficiaries might agree to divide the estate equally between them rather than to leave it in the unequal shares provided.

The Public Trustee continued to manage the copyright and made copyright payments to family members. It is unclear why the copyright was sold in 1983, but as a corollary the copyright payments to Albert Namatjira’s relations ceased. Albert’s copyright will expire in 2029.

It was recently reported that the Public Trustee made a mistake and only meant to sell the existing copyright which was valid for a further 7 years until 1990. It was never the Public Trustee’s intention to sell Legend Press the rights for the full copyright period, which would have been an extra 27 years. In interviews the then Public Trustee was adamant that the sale of the full copyright was never discussed. In selling the rights it didn’t reflect the role the Public Trustee took in administering Albert’s estate.

The Public Trustee believed that the copyright sale was designed to wind up the estate, so that outstanding royalties could be paid out to Namatjira’s many beneficiaries. An actuarial value was the basis of the $8500 sum that was paid however an art expert was not consulted

Under the existing license agreement Legend Press held the rights to reproduce Albert’s work, and continued to pay a 12.5% royalty to his family each year.  When the agreement concluded in 1983, the Public Trustee sold the copyright to his works for $8,500 to Legend Press who retained their hold over Albert’s copyright. Since then the family haven’t had any access to royalties generated as a result of the copyright to Albert’s work.

An artists copyright may become more valuable over time. In licensing or assigning copyright during their lifetime the artist and those responsible for administering their wills and estates often do not understand the potential value that copyright can have. Copyright was recently extended to 70 years following an artist’s death, which meant that Legend Press retained copyright until 2029. It has been reported that Legend Press has restricted the use of Albert’s paintings and images.

Arguably the copyright fees, which could be collected by the family from licences of Albert’s work over the remaining copyright period, would have been far in excess of $8,500.  Since his death Albert’s works have increased dramatically in price, similarly Albert’s copyright fees would have increased commensurably. The Public Trustee did not consult Albert’s family or understand the financial benefits for the family would be much greater than the $8500 sale price.

Albert’s copyright issues demonstrate that indigenous artists often lack adequate protection. The campaign to regain the copyright for Albert’s family began eight years ago, it included a show called Namatjira, Albert’s grandchildren, visited London where they met the Queen.

Early this year the ‘Namatjira Legacy Trust’ was established to preserve and protect the Namatjira family legacy and support the sustainability of the Hermannsburg Watercolour Movement.

Australian businessman Dick Smith, whose father had once worked for John Brackenreg, who died in 1986, contacted John’s son Philip, one of the current owners of Legend Press. After a short discussion Philip signed over the copyright to the Namatjira Legacy Trust for $1. In return Mr Smith donated $250,000 to the trust.

This means royalty payments will be paid from the Trust to Albert’s family and their community. Importantly the family can control the reproduction of Albert’s work in all its forms from gallery catalogues and websites to merchandising, films and school textbooks.

 

 

 

 

 

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