Indigenous Law Bulletin
by Sonia Cooper and Terri Janke
The Melbourne City Council (‘Council’) has developed a code of practice for galleries and retailers to promote the ethical sale of Indigenous art and help protect Indigenous artists from being mistreated by rogue traders. The code seeks to combat unethical behaviour by galleries and retailers in the central business district (‘CBD’) of Melbourne by encouraging good faith relationships between artists and galleries, advocating the use of written contracts and promoting the sale of authentic Indigenous arts and crafts. This is a ground-breaking proactive measure taken by local government.
The Council developed the Code of Practice for Galleries and Retailers of Indigenous Art (‘the Code’) from 2004-2006 and plans to introduce it in 2007. This innovative project was initiated by the City’s Indigenous Art Advisory Panel and endorsed by Council in June 2006 while the Code itself was written and researched by Solicitor, Terri Janke. The Code encourages the promotion of Victorian Indigenous artists (described in the Code as South Eastern Australian Indigenous Artists) and urges galleries and retailers to promote the diversity of Indigenous arts and craft. The focus of gallery art is all too often central desert or northern Australian art while there is a thriving south-eastern Indigenous art movement that should not be overlooked.
The Code is voluntary in that galleries and retailers must sign up to it, however they can enter into an agreement with Council agreeing to abide by the Code in return for ‘accreditation’. They will be noted on Council’s website and at information centres as being an ‘accredited’ gallery or retailer and accredited galleries and retailers can use the Code’s logo and branding. Compliance will be self-regulated and evaluated annually, and if a complaint is received, the Council will investigate.
The Code is the first of its kind in Australia and shows how local government authorities can act in the absence of federal or state laws to protect Indigenous arts. The Council and its Indigenous Arts Advisory Panel were brought to breaking point in 2004 when Melbourne Art Galleries were the focus of negative reports about galleries exploiting Indigenous artists. This concerned the Council and the Indigenous Arts Advisory Panel who then set the goal to develop the Code. Melbourne City Councillor David Wilson remarked: ‘I think the code says we, as a community, are aware of some of the issues and we’re willing to tackle them.’
Indigenous art is estimated to fetch over $200 million each year. The exploitation of Indigenous artists has become a side effect of the Aboriginal arts boom: there are reports of artists being expected to paint unreasonable numbers of canvases and/or never told the sale price, and on top of this, copyright infringement is rife. In 2003, The Age newspaper reported that a group of central Australian Aboriginal artists had been housed in isolation in Dandenong by a gallery owner from the Melbourne CBD.
A neighbour complained to Aboriginal Affairs Victoria that she was concerned for the artists’ well-being. They had come knocking on her door asking for a heater, extra clothing and food. She also told of their isolation: they were left with no car, no money; just a frustration with their gallery sponsors. This is just one example of dubious practices that artists face in the industry.
Unfair and unethical practices by galleries and retailers exploit Indigenous artists and bring disrepute to the Indigenous art market. Some examples of unethical practices include:
• Paying artists inadequately for their artworks or in alcohol or drugs;
• Expecting artists to paint unreasonable numbers of paintings in a limited timeframe;
• Selling fakes and frauds; and
• Painting art and passing it off as painted by an Indigenous artist.
In 2003, The Age reported another instance where artists were asked to paint 10-15 canvases in exchange for a car. When the car turned up it had a flat tyre, no spares and no jack. Indigenous artists are being paid in alcohol, drugs, Viagra and cars. There have also been reports of physical abuse. The Code encourages galleries to deal with Aboriginal art centres established to advocate for artists living in remote and rural areas. Artists who are not represented by arts centres are encouraged to seek legal advice.
Under the Code, galleries and retailers will use written contracts with Indigenous artists which will allow greater understanding of the gallery’s terms than oral agreements. The Code says that adequate opportunity should be given to the artist to have the contract explained, to seek legal advice, and consider the proposed terms. If necessary, a translator will be used to translate the terms of the contract.
Copyright and moral rights would be a term within the contract. These are provisions of the law and any such breaches may result in legal action and damages. Moral rights are a very important right to an artist. If an artist’s work is to be altered or adapted for mass production, the artist should be given opportunity to approve or reject the alteration or adaptation to their work. Alterations and adaptations of an artist’s work without their consent are against the moral rights provisions as set out in the Copyright Act 1968 (Cth) but there are instances where it is not observed. The Code reinforces the laws and states that galleries and retailers will respect the copyright and moral rights of the artist.
Prior written consent of the artist must be sought before any alterations or changes are made to their original works. Samantha Joseph of the Arts Law Centre of Australia and the Artists in the Black program says, ‘written agreements between Indigenous artists and galleries offer greater protection for Indigenous artists.’
Along with the Code, the Council will publish an Artists’ fact sheet that addresses questions like relationships with Indigenous artists; exclusive or non-exclusive agreements; and an artist-gallery checklist. The checklist includes such things as:
• Is there a written contract?
• Has the pricing structure been explained?
There will also be general legal information and contact information provided on national art advocacy organisations detailing the scope of dealings and proper engagement.
The Code also focuses on trade practices issues such as misleading and false labelling and pressuring artists to enter into agreements. Section 52 of the Trade Practices Act 1974 (Cth) and fair trading legislation in the states and territories prohibits conduct that is misleading or deceptive, or is likely to mislead or deceive. Unconscionable conduct in the scope of trade or commerce is an offence under the Trade Practices Act 1974 (Cth). Unconscionable conduct in contracts including duress and undue influence is also unfair, unreasonable and oppressive. Indigenous artists have the right to contract and the right to be paid for their artwork just like anyone else. They also have right to benefit economically.
The sale of fake and fraudulent works is also dealt with in the Code. Indigenous people are concerned that many rival products are not authentic. Many products reproduce stylised designs and are marketed as ‘Aboriginal’, ‘Aboriginal-style’ or ‘Aboriginal inspired’. Further, the use of ‘authentic’, ‘Aboriginal’ and ‘Indigenous’ in the labelling of art products is misleading and deceptive to consumers. Reports have been made by Aboriginal arts centres that their logos and information (including artists’ biographies and photographs) are being copied from their legitimate websites and used on bogus internet sites to sell fake works.
The Code sets out proper ways of labelling and representing Indigenous art products and selling art online. To educate the buyer, the Council has designed a ‘buyer’s fact sheet’, providing information about where to buy reputable Indigenous art. It warns buyers purchasing work over the internet to look for art sourced from art centres or reputable agents who are members of the Australian Indigenous Art Trade Association (‘AIATA’) or the Australian Commercial Galleries Association (‘ACGA’), including the Council’s ‘accredited’ galleries and retailers list.
Another issue is products being sold as ‘authentic art’ or ‘certified authentic’ when they are not painted or created by Indigenous artists. In 2003-2004, the Australian Competition and Consumer Commission (‘ACCC’) took action against two related companies Australian Icon Products Pty Ltd (‘AIP’) and Australian Aboriginal Art Pty Ltd (‘AAA’). The ACCC alleged that in selling Aboriginal art, these companies made representations likely to mislead. The AIP had supplied souvenirs such as hand-painted boomerangs and pottery with Aboriginal-style designs and motifs. These products had stickers or labels with the words ‘Aboriginal art’ and ‘authentic’. AIP also maintained a website that represented their souvenirs as ‘Australian Aboriginal Art’ painted by artists who were ‘Australian, Aboriginal by descent and Aboriginal’. The items were made by a pool of artists including Indigenous and non-Indigenous people. Product labels were also represented as ‘certified authentic’ when in fact the products had not undergone any certification process. Court orders relating to these matters included injunctions, corrective notices, declarations, public notices about the breach of section 52 of the Trade Practices Act 1974 (Cth) and compliance training for management. In a media release, the ACCC Chairman warned souvenir producers and retailers to be careful about how they market Aboriginal-style souvenirs.
The Code says that professionalism, honesty and integrity will be exhibited always by galleries and retailers in their dealings with Indigenous artists and when dealing in the Indigenous art market. The Code is intended to guide galleries and retailers in the Melbourne CBD in appropriate ways to sell and display Indigenous art, and to interact with Indigenous artists. Promoting the diversity of Indigenous arts and cultures respectfully is encouraged and a list of guides and website addresses is provided to assist.
Representations of Indigenous artists and their cultures needs to be accurate and presented in a culturally appropriate manner. Some examples from the code include:
• The use of Uluru images requires a permit under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Environment Protection and Biodiversity Regulations 2000 (Cth).
The correct display of Aboriginal and Torres Strait Islander flags.
Correctly and respectfully addressing Indigenous people with a capital ‘I’ for Indigenous and ‘A’ for Aboriginal. Derogatory terms such as ‘Abo’, ‘part-Aboriginal’, ‘full-blood’ and ‘half-caste’ are offensive and galleries and retailers will not use them.
Galleries and retailers should consult with the relevant Indigenous people on the use of Indigenous language words and respectfully represent Indigenous people.
Galleries and retailers will not unfairly or illegally represent the provenance of a work. Galleries will source original works from reputable sources such as directly from the Indigenous artist, an Indigenous arts centre or his or her reputable agent.
To monitor compliance, the Code agreement between the Council and the galleries or retailers will be renewed annually to ensure they are practising the Code. The accredited gallery or retailer will provide evidence of their compliance each year. If the Council considers that the accredited gallery or retailer has not provided sufficient evidence of compliance, the gallery or retailer will have their accreditation status removed and all notices bearing their name will be removed. If applicable, the relevant authorities such as consumer affairs or the police will be notified.
There is a complaints process where the Council investigates written complaints about ‘accredited galleries’. The complaint will be reported to the Indigenous Art Advisory Panel. The Council may also take further action by way of alerting relevant authorities such as the ACCC and Consumer Affairs (Vic).
The Code recognises the well principled industry codes of the ACGA and the Code of Practice and Code of Ethics of the AIATA by promoting these codes and requiring members of ACGA and AIATA to comply. There is also the National Code of Practice currently being developed by the National Association of Visual Arts (‘NAVA’) to apply to the commercial sale of Indigenous art. The Melbourne City Council Code applies specifically to galleries and retailers in the CBD of Melbourne, however. The Council will review their Code every three years.
There is growing evidence to suggest that Aboriginal art consumers are looking for authentic art products. As ACGA secretary Ana Schwartz says, ‘people will feel comfortable if they know a gallery is not exploitative.’ The ACGA believes that consumers will respond positively to the Code. Ethical consumers want art that does not exploit or rob Indigenous artists.
The Council should be congratulated for taking positive steps to promote best practices in dealing with the sale of Indigenous art. In strengthening the sale of Indigenous art against unfair dealings Council will be investigating the possibility of giving an Award for Ethics in the sale of Indigenous art as part of the annual Melbourne Awards, to a gallery or retailer in the Melbourne CBD. The aim is to encourage better relationships between galleries and Indigenous artists. This will hopefully translate to produce ethical and stunning art for consumers and the continuing recognition and artistic respect for the oldest living traditional art practice in the world.
Sonia Cooper is a Paralegal at Terri Janke and Company. She is studying law at the University of New England and is in her 2nd year of studies and her 4th year with Terri Janke and Company Pty Ltd.
Terri Janke is Solicitor Director of Terri Janke and Company Pty Ltd, a law firm specialising in Indigenous art and intellectual property.
 Terri Janke, Code of Practice for Galleries and Retailers of Indigenous Art (2006), commissioned by the City of Melbourne, Victoria.
 The Indigenous Art Advisory Panel (‘IAAP’) was set up in 1999 and consists of representatives from the Victorian Indigenous arts industry. The role of the IAAP is to provide advice to the Cultural Development Advisory Board on the most appropriate focus for the Council's Indigenous arts spending. For a detailed list of members visit <http://www.melbourne.vic.gov.au/info.cfm?top=75 & pg=800> .
 Corrie Perkins, ‘Galleries Welcome Ethical Guideline’, The Australian (Sydney), 23 June 2006, <http://www.theaustralian.news.com.au/story/0,20867,19557280-16947,00.html> at 8 July 2006.
 Terri Janke, Our Culture: Our Future – Report on Australian Indigenous Cultural and Intellectual Property Rights (1999) 13, produced under commission of the Aboriginal and Torres Strait Islander Commission and the Australian Institute of Aboriginal and Torres Strait Islander Studies.
 Central Land Council, ‘Unscrupulous Art Dealers Destroying Aboriginal Art Market’ (Press Release, 29 November 2005); Visual Arts Copyright Collecting Agency (‘VISCOPY’), (Press Release, 25 January 2006).
 Gabriella Coslovich, ‘Aboriginal Works and Artful Dodgers’, The Age (Melbourne), 20 September 2003, <http://www.theage.com.au/articles/2003/09/19/1063625217241.html?from=storyrhs> at 25 July 2006.
 Copyright Act 1968 (Cth) Part IX.
 <http://www.artslaw.com.au/Indigenous> at 19 September 2006.
 Email from Samantha Joseph, Indigenous Lawyer, Arts Law Centre of Australia to Sonia Cooper, Paralegal, Terri Janke & Company, 26 July 2006.
 Simon Kearney, ‘Tribal Art Painted by Backpackers’, The Sunday Mail (Brisbane), 12 December 1999 or <http://www.museum-security.org/99/109.html> at 19 September 2006.
Australian Competition and Consumer Commission, <www.accc.gov.au/content/index.phtml/itemId/526357> at 9 February 2006.
 Department of Environment and Heritage, <http://www.deh.gov.au/parks/uluru/vis-info/permits.html> at 19 September 2006.
 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Section 356(1)(x).
 Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Regulation 12.24.
 Complaints should be directed to Janina Harding, Indigenous Arts Programs Manager via <firstname.lastname@example.org> or 03 9658 8877.
 See National Association for the Visual Arts (‘NAVA’) public briefing document, ‘Development of Ethical Indigenous Art Trade Strategies and an Indigenous Art Commercial Code of Conduct (2006), <http://www.visualarts.net.au/files/IACCCprojectbrief.pdf> at 27 September 2006.
 Corrie Perkins, above n 2.
 Terri Janke above n 1, clause 15.6. The Melbourne Awards are prestigious awards in that they honour and recognise individuals and organisations that have made significant contributions to Melbourne’s profile, community and environment, <http://www.melbourne.vic.gov.au/info.cfm?top=77 & pg=812> at 27 September 2006.