Indigenous Law Bulletin
by Samantha Joseph
Indigenous art is a thriving empire both locally and internationally. It is part of a million dollar arts industry. Indigenous art is rich in cultural integrity and knowledge and is a vital part of Indigenous culture. Unfortunately, Indigenous art is often susceptible to exploitation.
This article offers practical and legal insight into the operations of copyright and contracts law and the benefits they offer creators of Indigenous art.
Indigenous culture and art share an important relationship. Wandjuk Marika, an Aboriginal artist from the Northern Territory summed up the relationship by declaring in 1975: ‘Our art and culture are very dear to us, they embody the past history of my people, our beliefs today, and our strength to survive’. This declaration illustrates the special relationship shared. However, it also demonstrates the clear distinction between this relationship and that of Western art and culture.
Indigenous art and culture share the same lifeline. Art and culture represent the link to the survival and preservation of Indigenous culture. Art represents the symbolic connection to culture through such things as dance, music, songs, stories and designs. Generally speaking cultural laws regulate the use of Indigenous art. Traditional owners are the custodians of cultural images and determine which image can be used and by whom. Indigenous customary law is communal – based on shared knowledge passed on throughout the generations.
The Copyright Act 1968 (Cth) governs copyright laws. So what exactly is copyright? In a nutshell, copyright refers to the right of the owner to control some uses of their material and to benefit financially from the use of their work.
Copyright exists automatically when an original concept is transferred into material form. In Australia, there is no requirement to register material for copyright protection. Copyright protects a limited range of material including artistic, musical, dramatic, literary works, sound recordings and films. This paper will focus on artistic works.
The owner of an artistic work has the right to reproduce, publish and communicate the work to the public (ie transmission by television and the internet). It is worth noting at this point who owns copyright and what rights copyright law grants to an owner. The general rule is that the person who makes the work owns it. For example, a painter of a portrait, the author of a poem, or a person who takes a photograph is generally the copyright owner. This rule is subject to a number of exceptions.
Copyright protects a work for the life of the artist plus 70 years after they have passed away. Upon expiration, the work is in the public domain and it is therefore free for use without permission. For example rock paintings that were created thousands of years ago would be deemed to be in the public domain in regard to copyright laws.
If you suspect that someone has infringed your copyright, that is, has used your work without your permission, it is advisable to have evidence to support the claim. Copyright infringement arises when a whole or a substantial amount of a work has been used without the authorisation of the copyright owner. This is a qualitative test not a quantitative test. Bear in mind that it is the responsibility of the owner to control their work and to ensure it is not infringed.
Indigenous Culture and Intellectual Property (‘ICIP’) refers to Indigenous peoples’ rights to their heritage. It provides for Indigenous people to own and control all forms of cultural heritage. Unlike copyright laws which protect defined material, ICIP refers to all aspects of cultural heritage. These include ancestral remains, sacred sites, languages, knowledge, cultural resources, documentation of all forms of heritage (for example, research reports), spiritual knowledge, literary, performing and artistic works and cultural environment resources (such as minerals). Copyright law inadequately protects ICIP because of the differences that exist between the existing copyright laws and Indigenous customary laws.
The case of M* and Others v Indofurn Pty Ltd and Others (1994) 54 FCR 240, known as the ‘Carpets Case’, illustrates where copyright laws have successfully been used to protect Indigenous culture. This is a landmark case involving Indigenous artworks made in Vietnam and imported to Australia without the permission of the artists. The artworks depicted traditional imagery from the artists’ clans. The works were later reproduced onto carpets without the artists’ permission.
The importer, Indofurn Pty Ltd, argued that the artworks were not protected by copyright because they were based on traditional designs and did not meet the originality and authorship requirements of copyright law. They also said that the carpets did not infringe the copyright of the artworks as they were not direct copies. The Court held that the artists owned copyright in the artworks and that the carpets satisfied the substantiality requirement as they were strikingly similar to the artworks and reproduced important aspects of the works.
Banduk Marika, an Indigenous artist who had her work reproduced onto carpets discussed the ramifications of the infringement from a customary law perspective. She said:
If permission has been given by the traditional owners to a particular artist to create a picture of the dreaming, and that artwork is inappropriately used or reproduced by a third party, the artist is held responsible for the breach which has occurred, even if the artist had no control over or no knowledge of what occurred.
At the Arts Law Centre (‘Arts Law’) we are surprised when artists do not enter into written contracts. Often the sentiments expressed by the artists are ‘they are my friend, I can trust them’, ‘contracts are what lawyers use, what do I need one for?’ or ‘in my day a handshake was enough’. A written contract is the most effective way of protecting artists’ rights and interests and can prevent disputes arising later.
A contract is a legally enforceable agreement between two or more parties who have exchanged promises to each other and face consequences if a promise is broken. To create a legally binding contract there must be an offer (for example, ‘If you paint me a picture of my dog I will pay you $50’), an acceptance of the offer (‘yes’), consideration (exchanging the painting for $50), and an intention to create a legal relationship. Contracts can be made in writing, orally, partly written/partly oral or implied by the conduct of the parties. They are usually made up of terms that reflect the arrangement between the parties. For example, the names of the parties, the purpose of the agreement, due dates, payments, termination, alternative dispute resolution, governing law and signing provisions. Contracts will vary depending on the arrangement.
The contract adopted by Arts Law recognises both contract law and ‘protocols’. Protocols indicate the appropriate conduct when interacting with Indigenous people and their communities. Protocols are made in good faith and encourage mutual respect, however, they are not legally binding. There are a broad variety of protocol guidelines publicly available offering a generic overview of important codes of conduct. Due to the inadequacies of copyright laws, contracts offer protection of ICIP.
Since the commencement of Artists in the Black, an increasing number of Indigenous artists have received specific legal advice about their contractual arrangement. Sadly, the advice is at times sought as a result of the parties failing to enter into written contracts at the outset. This becomes difficult as it involves the perception of each party as to what was agreed upon. Arts Law is aware of a number of disputes involving Indigenous artists who have entered into verbal arrangements with individuals who possess a wealth of knowledge about the industry and use this knowledge against the artists and subject them to exploitation.
Contracts are entered into for a broad range of purposes. For example:
When considering whether to enter into a written contract there are a number of issues to consider:
Samantha Joseph is a Solicitor at the Arts Law Centre of Australia.
 Unless otherwise specified, all references relate to Australian law.
 V Johnson, Copyrites: Aboriginal Art in the Age of Reproductive Technologies (Touring Exhibition, 1996).
 Copyright Act 1968 (Cth).
 Copyright Act 1968 (Cth) s 135ZZF.
 Copyright Act 1968 (Cth) s 123.
 Copyright Act 1968 (Cth) s 32.
 This applies specifically to Australia. This requirement might be different in overseas jurisdictions. Copyright Act 1968 (Cth) s 77.
 Copyright Act 1968 (Cth) ss 22 & 166AB.
 Copyright Act 1968 (Cth) s 31 (1) (b) (i) (ii) & (iii).
 Copyright Act 1968 (Cth) s 35 (2).
 Copyright Act 1968 (Cth) s 35css (1) and Parts VII & X regarding Crown ownership and assignments, (4) works made in employment capacity is owned by employer and (5) work is made in pursuance of an agreement.
 Copyright Act 1968 (Cth) s 33 (2).
 Rock paintings and other cultural artefacts are protected by other legislation such as Cultural Heritage (in relevant states and territories) and Native Title (in relevant state and territories).
 Copyright Act 1968 (Cth) s 36 (1)
 Terri Janke, Our Culture: Our Future, Report on Australian Indigenous Cultural and Intellectual Property Rights (1998) <http://www.frankellawyers.com.au/report/culture.pdf> at 2 May 2006, xvii.
 M* (Deceased) full name suppressed due to cultural reasons and Others v Indofurn Pty Ltd and Others  FCA 975; (1994) 54 FCR 240.
Terri Janke, Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions, commissioned by the World Intellectual Property Organisation, (2003) 15.
 See generally, Jeannie Paterson, Andrew Robertson & Peter Heffey, Principles of Contract Law (2nd ed, 2005); also see the ArtsLaw/Artists in the Black website for information regarding contracts at <http://www.artslaw.com.au/LegalInformation/Indigenous/Contracts.asp> at 2 May 2006.
 For sample contracts and more information see the ArtsLaw website at <http://www.artslaw.com.au/SampleContracts/> at 2 May 2006.