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McCausland, Sally --- "Adelaide Art Dealer Charged over Clifford Possum Paintings" [1999] IndigLawB 83; (1999) 4(24) Indigenous Law Bulletin 19

Adelaide Art.Dealer Charged over Clifford Possum Paintings

By Sally McCausland

Another chapter in the controversy surrounding indigenous artist Clifford Possum Tjapaltjarri has unfolded in the courts. In the most recent and dramatic development, newspapers report that Adelaide art dealer John O'Loughlin has been charged under the New South Wales Crimes Act 1900 with several counts of obtaining a benefit by deception. The charges reportedly stem from a police investigation code-named 'Operation Normandie' instituted after Mr Tjapaltjarri visited Sydney earlier this year to view several paintings mistakenly attributed to him.

Mr Tjapaltjarri has been in the news frequently over past months. In addition to his paintings earning the dubious tide of ‘most faked in Australia’,1 he has also been caught up in controversy over competing indigenous and Western concepts of authorship.2 There have been claims that Mr Tjapaltjarri may have signed paintings which were worked on or completed by others.3 Although collaborative art practices like these are not necessarily problematic in traditional Aboriginal culture, they have stirred up heated debate within the white art world, and led to the question of whether such practices affect the ‘authenticiy’ of indigenous works. In some circumstances, collaborations and paintings-under-direction are culturally acceptable in both indigenous and Western traditions. In others, it is claimed that buyers may believe they have been misled as to the origins of the painting.4

The case against Mr O'Loughlin is notable as a rare criminal prosecution in art circles5 although controversies over art forgery are not uncommon in Australia,6 and unfortunately, indigenous artists are frequently caught up in them.7 Indigenous artists are also highly susceptible to ‘bottom end’ tourist market fakes.8 Australias tourist industry depends strongly on indigenous culture to promote Australia as a unique destination, and there is money to be made from souvenirs bearing indigenous imagery. However, many of these are cheap ‘rip-offs’. In response, indigenous artists have waged an ongoing war to ‘stop the rip-offs’ of their culture on t-shirts, tea-towels and other souvenirs. At times, they have been able to bring copyright infringement actions where specific works have been reproduced illegally.9 Now efforts are being directed towards stopping the appropriation of cultural symbols, rock art and styles of painting not covered by existing legislation. One proposed line of attack is the soon to be released National Indigenous Artists Advocacy Association's Label of Authenticity.10 The Label will help encourage tourists to select authentic indigenous works over fakes through a label of origin similar to the wool industry's Woolmark. The recently released report on the protection of indigenous cultural and intellectual property (Our Culture:Our Future)11 suggests other legal avenues for addressing these issues.12

Authenticity disputes do not always end up in the criminal courts. Criminal actions are only effective where the evidence meets the high standard of proof required from the prosecution. If the police refuse to prosecute, or it is too difficult to prove criminal conduct, an artist or buyer can consider bringing a civil action. The advantages of using the civil courts are that the buyer or artist can bring the action themselves, the onus of proof is not as high and remedies such as damages can be awarded. However, unlike in a criminal action, they must finance the action themselves and risk an order to pay the defendants' costs if they lose. In the past, civil actions have included breach of section 52(1) of the Trade Practices Act 1974 (Cth) which prohibits misleading and deceptive conduct in the course of trade;13 breach of contractual warranty and breach of state and territory Sale of Goods legislation.14

Unfortunately, rumours and allegations over the authenticity of paintings can rebound on buyer confidence in indigenous artists whose works are called into question. The art market plays an important economic role for many Aboriginal people, especially in remote areas such as Central Australia where Aboriginal unemployment rates are even higher than the rest of Australia. Fakes can be hard to detect; some of the alleged wrongly attributed Clifford Possum paintings reportedly hung in unsuspected in prestigious galleries. Many Aboriginal artists live far away from the galleries where their works are displayed and do not have the opportunity to identify possible fakes; Clifford Possum Tjapaltjarri had to fly from Alice Springs to Sydney to see the disputed paintings earlier this year.

The O'Loughlin case is next listed for timetable directions on 13 November 1999.

Sally McCausland is a Legal Officer at the Arts Law Centre in Sydney.


1.Dealer Hank Ebes of Aboriginal Gallery of Dreamings, quoted in S McCulloch-Uehlin,'The Hand that Signed the Paper' The Weekend Australian Review, 24-25 April 1999.

2.See eg S McCulloch-Uehlins, ibid; Chris Ryan, 'Storm in the Desert' The Sydney Morning Herald 18 November 1997, 17; S McCulloch-Uehlin,'Painter Tells of Secret Women's Business: I Signed My Relative's Work' The Weekend Australian, 17-18 April 1999, 1; S McCulloch-Uehlin, 'Dealers Trade on Grey Areas in Red Centre Art' The Weekend Australian, 17-18 April 1999, 4.

3.S McCulloch-Uehlins, above, 'Painter Tells of Secret Women's Business...' at 25; 'Dots for Dollars, Four Corners, Australian Broadcasting Commission television programme, 31 May 1999.

4.See eg S McCulloch-Uehlins, above n 2, 'Painter Tells of Secret Women's Business..: in relation to the return of a painting to an auction house.

5.See l Krygier, Art Forgery and Criminal Law (September 1994) Art Monthly Australia 32.

6.See eg J Rewald, 'Modern Fakes of Modern Pictures' (1953) 52 Art News 17; D Grant, 'High Prices Lead to More Fakes in Art Marker' (June 1981) Arnoorkers News l; C Ashton, 'So You Think Your Pro Hart is Genuine, The National Times, 14-20 October 1983, 31; P Smith, 'The Crude Fake that Passed as Passmore The Sydney Morning Herald 27 June 1987, 48; D Mars, 'Changing the Label' The National Times, August 3-9, 1984, 16; S de Vries-Evans, 'The Art of Faking It' The Sydney Morning Herald, 27 March 1993; S Owens, 'What a Bummer: An Authentic Fake' The Sun-Herald 8 May 1994, 150; T Ingram, 'Whiteley Drawings are Branded Fakes' Financial Review, 29 April 1994, 2; B Hills, 'A Brush With Fame The Sydney Morning Hera/d 18 July 1998, 3; J Morgan, 'Painting's Authenticity Questioned' The Sydney Morning Herald 6 October 1999, 6.

7.A notorious example is the 1992 controversy involving The Killing ofLuma Luma, reputed to have been painted by Bobby Nganjimirra of Gumbalanya in Western Arnhem Land. The then Victorian Premier, Joan Kirner, had purchased it under the Premiers Acquisition Fund before anyone queried its authenticity. The dealer in that case denied any wrongdoing. See eg E Hannan, 'Dealer denies Aboriginal Artwork a Forgery', The Australian, 11 June 1992, 3; L' Lamont and G Ryle, 'Police to Investigate Fake Paintings Claim The Age, 11 June 1992, 1; G Ryle, 'Melbourne Dealer to Take Action Against His Critics' The Age, 11 June 1992, 6.

8.See A Harvey, 'Black Artists Fear the Black Art of Forgery' The Sydney Morning Herald 19 September 1995, 3.

9.See eg,Milpurrurruvlndofurn(1995)30IPR209;BulunBulun R&T Textiles (1998) 41 IPR513; see generally M Hardie, 'The Bulun Bulun case' (1998) 4(16) ILB 24; V Johnson, Copyrites: Aboriginal Art in the Age of Reproductive Technologies (Touring Exhibition Catalogue) (1996); I McDonald, Protecting Indigenous Intellectual Property (1998); T Janke, Our Culture: Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights (1998): now available at <>.

10.See M Annas, 'The Label of Authenticity: A Certification Mark for Goods and Services [1997] AboriginalLawB 20; (1997) 3(90) Aboriginal Law Bulletin 4. For latest updates, see <>.

11.Janke, above n 9.

12.Our Culture, Our Future's recommendations include enactment of specific legislation and development of codes of ethics.

13.See eg Saint Gallery Pry Limited v Plummer (1988) 80 ALR 525; commented on by S Simpson, 'Fakes, Forgeries and Fees: the Authentication of Fine Art' (1988) 62 Alernative Law Journal 796.

14.For discussion of cases and principles concerning the related areas of breach of contractual warranty and breach of Sale of Goods legislation, see eg LA Lawrenson, 'The Sale of Goods By Description-A Return to Caveat Emptor?' (1991) 54 Modern Law Review 17; G Waite, 'Art Forgeries' (September 1992) Museum National 5; J Krygier above n 5.

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