This is the Question Marque Lawyers Would Ask the Unions About Support for Freelancers
Marque Lawyers are not your average lawyers. A commercial law firm with a whole lot to say, this
Sydney-based practice represents several creative individuals and organisations in the fashion
industry. Which means the Marque team understands the nuanced legal rights of creatives, while also
recognising that legal and union-based support for freelancers is still lacking in Australia.
With a commitment to using the law for good, Marque lawyer Emilie Blake and partner Justin
Cudmore took the time to chat with What-Else about the legal issues currently facing creatives in the
fashion industry. And to share the main question that they would like to ask the Australian Council of
Trade Unions (ACTU) about how we could better support freelance creatives in Australia.
Rosie Dalton: Hi Justin and Emilie! I was wondering if you could start by running us through
what you do and how this relates to creative work?
Emilie Blake: Of course. We work with a number of creatives [from] emerging and established
fashion brands, to artists, graphic designers, authors, and designers, assisting them with contractual
relationships. That might be manufacturing and distribution [for] fashion brands, for example. We
[also] provide a lot of intellectual property assistance and advice — so that would be things like
licensing, IP disputes, and registering / protecting your own IP, which is relevant to everyone from
authors through to brands. We also do a bit of Australian Consumer Law work, assisting with advice
and compliance [around things like] refunds and consumer guarantees. And we work with brands on
events and activations like pop-ups or runway shows, as well as content review. That overlaps with
journalists and defamation, too, or general publishing pre-production review.
Rosie Dalton: Do you work with a lot of freelancers, or would you say that it’s more brands and
organisations that you represent?
Emilie Blake: Yeah, it is probably more brands and organisations that we work with at the moment.
Rosie Dalton: Is that because freelancers are generally less aware of where they can turn to for
support?
Justin Cudmore: Yes, but to be frank it is also a budget issue. Legal advice is not cheap, we
acknowledge that, and freelancers aren’t necessarily the best paid members of the supply chain — in
the fashion industry particularly. Legal advice is expensive, so it is definitely a block. I think that is
one of the significant issues facing freelancers in general. Emilie does a lot of work with an
organisation [called Arts Law] that provides individuals with ‘low-bono’ support, which is basically
[legal advice at] significantly reduced rates, particularly for individuals and freelancers.
Rosie Dalton: How would you describe the general understanding of the laws facing freelance
creatives in Australia?
Justin Cudmore: I think there is a general lack of understanding around legal rights and legal issues —
particularly in the fashion and creative industry. Even with significant brands we work with, they
don’t necessarily understand how best to protect their intellectual property and garments. There are a
whole lot of problems with the process of registering a design. Though in a Marque Lawyers sense
and in my role as chairperson of the Australian Fashion Council, we recently got some legislative
change which is quite beneficial and will help designers. But I think there is still a general lack of
understanding around intellectual property rights.
Emilie Blake: Yeah, and a big issue for freelancers [is understanding the difference between] the
employee and contractor relationship; the difference in your entitlements and benefits if you are
employed by a company, or if you are a contractor. Your pay, super, leave benefits and other
entitlements differ completely and I think it is maybe unclear to people what those entitlements are.
So, we see a lot of relationships become really murky. If you are regularly working for a magazine,
for example, at what point do you stop being a contractor and become an employee? The other point
is in terms of doing unpaid work, because technically it is illegal not to pay someone for their work,
unless you are volunteering for a charity or [the work] is connected with education. But we know that
in the creative space [lots of people are] just trying to get their name out there and doing work for
free. So it becomes very murky and people get taken advantage of sometimes.
Justin Cudmore: Yes, and whilst there are legal protections for those individuals, there is frankly so
much competition to get into the industry, that people will not insist on those rights and a lot of people
in the industry can take advantage of that.
Emilie Blake: And I guess [some creatives are] hoping for non-financial renumeration too, like their
name being in Vogue as a form of payment.
Rosie Dalton: Do people come to Marque Lawyers for those sorts of issues, or is it something
you don’t really see because it mostly affects freelancers?
Justin Cudmore: Yeah, not really, because freelancers are not getting paid, so they don’t have the
money to engage lawyers to enforce those rights. And I also think there’s a bit of an issue that if they
did raise a concern, they are not going to get any more work or experience.
Rosie Dalton: So, do you feel that there should be more structural support for freelancers
working within the creative industries and, if so, what would that look like?
Justin Cudmore: That’s a really difficult question but yes, I think there should be. And it’s obviously
an issue facing a large part of the workforce with the rise of the gig economy. There are two
competing interests here: there is the flexibility to work when and where you want to. But the flip side
of that is: are you getting the protection and support that we want people in our society to have in their
work? And the current laws just do not deal with that in any adequate way. Essentially if you are an
employee, you have got a whole bunch of benefits like minimum wages and protections against
workplace bullying and harassment or unfair dismissal. But once you are not an employee, you
essentially get no protections whatsoever; you are just a contractor and whatever terms you agree to
are what you will get.
Rosie Dalton: What role do unions play in these issues?
Justin Cudmore: Well, there are certain difficulties in unions acting on behalf of contractors because it
is not a traditional employment relationship, which unions are able to advocate the minimum award
for. And also because there are competition laws in place. So retailers can’t get together and agree on
pricing for a t-shirt, for example, [which means] there is downward pressure on pricing everywhere
and, if I’m selling my services as a freelancer, I’m part of that supply chain and everything is working
against me in terms of how I charge and how I deal with people in the provision of my services. If
you’re an employee, [on the other hand] there are laws that will protect you — minimum wages being
the most obvious one. So there is a fairly stark difference and the laws just don’t deal with it
appropriately at the moment.
Rosie Dalton: So are trade unions able to advocate on behalf of people that are not considered
employees?
Justin Cudmore: Well, I’m not a workplace lawyer, so I can’t talk to the specifics of how trade unions
are set up, but my understanding is that they can’t charge membership fees for people that aren’t
employees. I do think that they could advocate for freelancers’ conditions — and organisations like
the Australian Fashion Council can do that. But to the extent that they could try and argue for
minimum wages and so forth, I just don’t think that would be possible under the current laws.
Rosie Dalton: What support is available to freelancers in Australia then?
Emilie Blake: In our experience, there is not a lot of formal support available. Most freelancers are
dependent on their communities for tips and advice or, if they’re lucky enough, the support of trusted
advisors like an accountant or lawyer. As Justin said, there are organisations like the AFC and like
Arts Law (which I volunteer for) that have got resources and can provide support. But a lot of them do
require you to be a member to obtain the benefit of those services. Some government departments do
try to provide information [as well]. IP Australia has got a lot of guides around intellectual property,
but you still need to have enough of a base understanding to seek that out, read it, and digest it for it to
be of any value. Unfortunately, there is no clear and centralised tool [for freelancers].
Rosie Dalton: It is such a shame, but hopefully we can improve upon that one day! Would you
say there are any other nations doing better in this regard?
Emilie Blake: We did a bit of research, and the employment law stuff is very complicated, and
country based. But the big distinction we found was in terms of Intellectual Property protection. There
are broadly two systems of protection that are implemented. There’s what we would call a ‘closed
system’, which is what Australia has, where there’s essentially a list of things that are protectable. Or
you can have an open-ended system, where there are a set of looser criteria and, if those are met, then
the intellectual property is protectable. Canada, for example, has an open-ended system, and I think
France does too. But there are pros and cons to both. The risk with an open-ended system is that it’s
vaguer and the assumption is that most things are protectable, but then you need to go back and prove
it. From my research at least, it seems like creatives will rely upon the protection, assuming that
they’re broadly captured and then, when challenged, it turns out they’re not. Whereas here in
Australia, it is much more closed and clearly defined. This makes it more difficult to obtain some of
those protections, but once you have them, you can be a lot more certain.
Justin Cudmore: In terms of more general support for freelancers, there is not necessarily any other
country doing amazing things. There is still that divide between contractor and employee, so they are
facing the same issues. But organisations like the Council of Fashion Designers of America and the
British Fashion Council are doing similar things to the Australian Fashion Council around trying to
support creatives in the fashion industry.
Emilie Blake: And it’s true that things are changing. I mean the Screen Actors Guild of America just
recently brought in the scope of members and allowed some social media influencers and content
creators to join, which I guess gives them some additional protection and leverage.
Rosie Dalton: Are there any other insights you could offer from your experience with the AFC
Justin?
Justin Cudmore: I think the thing from working with the fashion industry for a long time as a lawyer
and as a director and chairperson of the Australian Fashion Council is that the fashion industry is
intensely competitive. A lot of people don’t want to share information, like about their great
manufacturer in Melbourne for example. But, at the end of the day, if no-one goes to the manufacturer
in Melbourne, then they will go out of business. So, there is a lot of benefit in working together. I
think the AFC has made [progress] in getting that point across. They have achieved a lot for the
industry and there is more coming out this year, which will benefit the industry as a whole.
Rosie Dalton: And Emilie, do you have any insights that you could share from your experience
working with Arts Law?
Emilie Blake: I would just love to see less of those same recurring issues that we mentioned. Like in
terms of intellectual property rights and infringement, we recently worked on a case for a First
Nations artist whose artwork was appropriated by a big sporting body. We got a really good outcome
for her and there was a settlement and acknowledgement, but those sorts of things really shouldn’t be
happening. You know, artists [should be able to] expect a clear contract to be given to them, so they
are more aware of their rights. And for bigger organisations, there is very little excuse not to have an
understanding of dealing with [these issues] better.
Justin Cudmore: There are way too many examples of that, and we deal with a number of them, where
smaller independent creatives have their intellectual property stolen by a massive international fast
fashion house. And, you know, the legal barriers to taking on such a massive organisation are huge.
[Those companies] have enormous in-house legal teams who will fight endlessly without incurring
legal fees, while the individual may have to incur potentially ridiculous legal costs to try and take
them on. And the legal system probably needs to respond to that — if there is a breach of copyright
intellectual property, you need to commence proceedings, which is very expensive.
Emilie Blake: The only sort of leverage [creatives have] is essentially using the media and Instagram
accounts like Diet Prada to call out bad behaviour. In that particular case [I mentioned], the company
was terrified of it making the news. Then I had another small Aussie fashion designer whose designs
were ripped off by Alibaba and we gave her some advice, but ultimately, she didn’t have the finances
to take action. Practically, organisations like that are really difficult to claim against, because they are
based overseas and, while she had sent numerous emails, she was essentially stonewalled. So, unless
you’re able to take it to the next level, legal avenues sometimes aren’t that helpful.
Rosie Dalton: Do you feel like there should be a centralised union for freelancers working in the
Australian fashion industry, to give them better leverage in these sorts of situations?
Justin Cudmore: I think there may be some legal hurdles involved with a formal union, but certainly
you could have an industry group. And, having essentially started an industry group, I know how
difficult that can be. Building a membership-based industry group is difficult because it needs to be
funded in some way. I don’t know that there is necessarily a lot of support from the government to
fund an industry group on that front, but maybe that’s one of the things that should be advocated for
in this whole gig economy conversation. I can see an absolute need for [a membership-based industry
group] and there’s a whole bunch of things that such an organisation could do around codes of
conduct and trying to advocate for standards of treatment and engagement, to try and level the playing
field.
Rosie Dalton: If you were to sit down with the ACTU, what would you ask them about how we
can improve support for Australian freelancers working in creative industries?
Justin Cudmore: My question would be about the extent to which they are set up to assist freelancers.
Obviously, they have the structure and support networks to support freelancers on an individual level,
if they are having issues, just like they would employees who are members. But also on that macro
level, in terms of advocating for workers’ rights and so forth, I would like to understand how their
structures, skills, and networks could be used to better assist freelancers.