Aboriginal Law Bulletin; Stevenson, Nina --- "Aboriginal Artists Agency Limited (About the Agency, Includes Casenote: Infringement of Copyright in Aboriginal Artworks)" [1985] AboriginalLawB 76; (1985) 1(17) Aboriginal Law Bulletin 5

• Aboriginal Artists Agency Limited
• Casenote-Infringement Of Copyright In Aboriginal Artworks

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Aboriginal Artists Agency Limited

12 McLaren Street, North Sydney NSW 2060

Australia Telex AA 21822 SY109

Telephone: [phone]

The Aboriginal Artists Agency is a small non-profit organisation located in North Sydney which operates a specialist clearance service for Aboriginal artists nationally.

Established in 1976 and funded since by the Aboriginal Arts Board of the Australia Council, the agency has grown considerably in the past five years. It represents many hundreds of Aboriginal and Torres Strait Islander artists in both the visual and performing arts. Recently it has established the first Aboriginal music publishing enterprise serving the needs of groups such as the Warumpi band and individual composers.

The first Chair of the Board of Management for the agency was Wandjuk Marika who was also a foundation member of the Aboriginal Arts Board.

Wandjuk Marika lives in Yirrakala, Arnhem land, and is of the Riratjingu people. He is an artist who learnt his knowledge originally from his father. His original involvement or desire in establishing the agency is recalled by a section of an article he wrote, 'Copyright on Aboriginal Art' for the Aboriginal News magazine (early Department of Aboriginal Affairs journal) in February 1976:

A painting is the visual expression of the story of our ancestors and spirit-beings, and the right to depict a particular story has been handed down through the ages from the original Dreamtime people. Some time ago, I happened to see a tea-towel with one of my paintings represented on it; this was one of the stories that my father had given to me, and no-one else amongst my people would have painted it without my permission. But some unknown person copied my painting and had it reproduced in this way, without even first asking my permission. I was deeply upset and for some years I have been unable to paint.

It was then that I realised that I and my fellow Aboriginal artists needed some sort of protection it is not that we object to people reproducing our work, but it is essential that we be consulted first, for only we know if a particular painting is of special sacred significance, to be seen only be certain members of a tribe, and only we can give permission for our own works of art to be reproduced. It is hard to imagine the works of great Australian artists such as Sydney Nolan or Pro Hart being reproduced without their permission. We are only asking that we be granted the some recognition, that our works be respected and that we be acknowledged as the rightful owners of our own works of art.

The Agency has produced a number of records covering traditional songs by Aboriginal people from Tiwi, Bamyili, and the Torres Strait. In addition postcards and calendars depicting Aboriginal art have been distributed while some books on art and craft have been sponsored.

Of great importance is the Agency's role in redressing copyright infringement and controlling the use of art in reproduction on behalf of artists. Royalties are collected and channeled to the artists ortheir communities depending on the arrangements.

The Agency has participated in many cases concerned with copyright and a casenote is presented as an example of the issues involved.

The present AAA Limited Board of Management is: Leila Rankine from the Centre for Aboriginal Studies in Music (University of Adelaide); Thancoupie an Aboriginal ceramicist and designer; Bill Reid an Aboriginal artist and Anthony Wallis who is a manager at the agency in North Sydney.

COPYRIGHT CLEARANCES OF WORKS OF ART APPEARING IN THIS ISSUE WERE ARRANGED THROUGH THE ABORIGINAL ARTISTS AGENCY, NORTH SYDNEY

Casenote - Infringement of Copyright in Aboriginal Artworks

by Nina Stevenson

With the prevalence of the 'Australian' trend in our Australian fashion and design industries printed fabrics featuring Aboriginal style artworks have become popular. Some designers have produced original designs imitating the style and colourings of Aboriginal paintings; others have employed Aboriginal people to do their designs. Unfortunately, however, some designers and fabric manufacturers hove been content to copy original paintings by Aboriginal artists.

In a recent case the plaintiffs (an Aboriginal artist and the Aboriginal Artists Agency as licensee) commenced an action for copyright infringement against a fabric designer/ manufacturer and the proprietor of a retail shop. The plaintiffs claimed that the copyright in an original bark painting entitled Long necked fresh water tortoises by the fish trap at Gaaran had been infinged by the defendants and sought orders including delivery up of the infringing fabric, damages and an account of profits. The case was settled with the first defendant (the designer) being ordered to pay damages and to provide a list of all persons to whom he had supplied the fabric, and the second defendant (the retailer) being orderto deliver up to the plaintiffs all the fabric reproducing the plaintiff's painting.

The case, although ultimatelysettled, raises some interesting questions. Willst the authorship of the bark painting is attributed to the first plaintiff, he learnt to paint the story depicted in the painting from another older Aboriginal painter who, according to Aboriginal law, also has right to the story of the painting, Although the arrangement of the elementsand the expressions on the figures may vary between painters of the story, certain features - such as the cross hatching and panelling and the way the figures are placed - will always be the same. The.concept of original authorship is somewhat inappropriate in this context. Could it ever be asserted that as Aboriginal plaintiff was not the author of a painting because the painting was, in effect, a copy and was not totally original in him? Alternatively is the painting a work of 'coauthorship'?

The casealso raises some interesting questions relating to the assessment of damages - what weight should be given to certain principles of Aboriginal law which make the act of infringement particularly distressing and insulting to Aboriginal people? Firstly, traditional Aboriginal paintings are sacred and belong tothe land. Some paintings used in a ceremonial ground ('secret and sacred' paintings) are only for the eyes of initiated Aboriginal men. How would the Court assess damages for copyright infringement of a 'secret and sacred' painting by the manufacture of tea-towels or table napkins? Secondly, in accordance with Aboriginal law, the cross hatching and panelling and the way the figures are placed in a painting are always the same. Similarly, geometric patterns signify social and ancestral relationships. In the case discussed above the fabric designer had made some changes to these elements; changes which in his opinion enhanced its aesthetic appeal, but which offended Aboriginal law.