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Getting Over Terra Nullis

Vivien Johnson, Writer and Researcher

Paper presented at the
Australian Registrars Committee Conference
Novotel Hotel, St Kilda, Melbourne

“If I don’t paint this story, some whitefella might come and steal my country”
Charlie Tjaruru Tjungurrayi

9 October 2001 - June 2 1992 was one of those days in Australia’s brief history as a nation when its world changed forever. On that day, the High Court brought down its decision in the decade long case of Eddie Mabo, and ruled that native title rights over unclaimed Crown land had survived 200 years of European colonisation. Australia’s indigenous peoples were legally entitled to the use and enjoyment of such traditional lands “as against the entire world”. So ended the legal fiction of “terra nullius”: that when the English colonised Australia in 1788 the land had been theirs for the taking. But Aboriginal art, in which generations of indigenous artists had painted the Dreaming designs which encode their entitlements to land under indigenous law, was still an artistic “terra nullius”. Commercial and nationalistic interests plundered its imagery with total disregard for the moral and legal rights of the artists and their communities - as if it too belonged to none.

When decimal currency was introduced into Australia in 1966, an unauthorized use of a bark painting by Arnhem Land artist David Malangi was discovered on the back of the dollar note. The painting depicts one of Malangi’s Dreaming sites at the mouth of the Glyde River and outlines in part the mourning rites that are performed at the death of a member of his clan. This subject matter has been a constant theme in the artist’s work over a distinguished career spanning several decades. A deeply embarrassed Governor of the Reserve Bank of Australia ordered Malangi’s contribution to the national currency to be acknowledged with the presentation of a silver medallion and $1000. His explanation of the oversight was that everyone had assumed the design was the work of some “anonymous and probably long dead” Aboriginal artist. That was how people thought of Aboriginal art and artists in Australia back then – and the rest of the world, I suspect, still does.

Enter Wandjuk Marika: elder, artist and musician from Arnhem Land, who in 1974 was appointed inaugural Chairman of the Aboriginal Arts Board of the Australia Council for the Arts. It was Wandjuk who first laid the issue of copyright in Aboriginal art on the table - literally. He threw down a bundle of cheap tea towels decorated with images of his own and his father’s paintings and challenged the assembled Council members and the society they represented to do something about it. Wandjuk was one of the first of his people to become aware of the problem of unauthorised reproduction of Aboriginal art works, because in his capacity as Board Chairman he was one of the first to travel widely and come into contact with mass-produced merchandise decorated with images copied from Aboriginal art. His own world held no cultural precedent for taking someone else's design and using it to enhance the profitability of one's product in the marketplace. The realisation that this was happening, and that the more popular Aboriginal art became the more it would happen, was profoundly disturbing for Wandjuk - as it has been for all the other artists affected by the illicit trade in their imagery. In his own words:

“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 by certain members of a tribe, and only we can give permission for our own work of art to be reproduced. It is hard to imagine the works of great Australian artists such as Pro Hart or Sidney Nolan being reproduced without their permission. We are only asking that we be granted the same recognition, that our works be respected and that we be acknowledged as the rightful owners of our own works of art.”[Wandjuk Marika 1974]

Wandjuk’s agitation led in 1976 to the establishment of an agency, with himself as founding Chairman, “to be responsible for protecting the copyright of Aboriginal artists, craftsmen and musicians”. But the legal and anthropological experts whom the Government had working on the problem labored under the same ethnographically induced preconceptions about Aboriginal art as had the Reserve Bank in the dollar note episode. Their focus was on the protection of folklore and visual traditions handed down unchanged for countless generations. As ethnographic artifacts, the very ‘authenticity’ of Aboriginal art was thought to rule out the ‘originality’ required of artistic works protected by the Australian Copyright Act 1968.

Then in the late ‘80s, the boom in Aboriginal art production and consumption, hugely increasing its circulation and visibility, met the tourist boom sparked by the 1988 Bicentennial ‘celebrations’. Aboriginal art images were now vastly more accessible in (legal) reproduction to the wider non-art audience in Australia and around the world - but in the process their exposure to potential copyright infringers had also been greatly increased, and at this point it still appeared that they could be pirated with impunity. As stolen designs flooded onto the tourist market, Aboriginal artists commenced the first in a series of court actions over infringements of their personal artistic copyrights that would finally bring this issue to the attention of the general public. In August 1989, artist Johnny Bulun Bulun took Flash Screenprinters, manufacturers of a line of T-shirts bearing unauthorised reproductions of his works, to court for copyright infringement. Bulun Bulun was subsequently joined by thirteen other Aboriginal plaintiffs whose work had also been copied onto Flash T-shirts without their permission. The case of Bulun Bulun v Nejlam P/L (unreported) only went as far as an injunction preventing further production and distribution of the offending articles. The matter was subsequently settled out of court (with a court-ratified settlement of $150,000 being paid to the artists by Flash), but the injunction still meant that the principle of copyright protection for Aboriginal art for which Wandjuk had fought for so long had finally been accepted by the courts. Regrettably, Wandjuk did not live to celebrate this small triumph.

On December 13th 1994, the Federal Court of Australia handed down a landmark judgment in a copyright case brought by George Milpurruru, Banduk Marika, Tim Payungka Tjapangati and the Public Trustee of the Northern Territory acting on behalf of five other deceased artists against a Perth-based company, Indofurn P/L and its directors. Milpurruru (et al.) v Indofurn was the longest running and may yet be the most significant legal action involving Aboriginal art and copyright infringement ever to go to full trial in Australia. The judgement ran to over ninety pages and Justice Von Doussa's award of $188,000 damages to the Aboriginal artists made headlines as one of the biggest payouts in Australian copyright history. Of this amount, $70,000 was awarded to the living artists for the “cultural harm” they had suffered within their own communities because they were involuntarily implicated in an offence against Aboriginal laws of intellectual property. This has led to the case being compared to Mabo in terms of the recognition and respect for Aboriginal law and custom that the concept of cultural harm implies. Like the Mabo decision for land rights, these rulings exploded the fiction of artistic terra nullius.

The redress which Aboriginal artists have obtained through the European legal system for infringements of their copyright undoubtedly advances the cause of their rights as creative individuals within mainstream society. However, in Aboriginal terms, their right to own and control certain uses of the intellectual property in question rests not in having originated their “signature” versions of the designs but in the tribe or clan having conferred custodianship of those designs on its individual members. The lawyers' arguments in these court actions sought to establish that the provisions of the Copyright Act are met by the stylistic individuality of the artists whose copyright has been infringed. But they were always underpinned by the case on which Wandjuk originally stood his ground: the communal sources of the artists' subject matter and inspiration. This issue was central to the case of Bulun Bulun and Milpurruru v R&T Textiles, which commenced in the Federal Court of Australia in 1997. A conventional case of copyright infringement involving the unauthorised copying of one of Bulun Bulun’s paintings onto dress fabric was transformed into one which pushed the boundaries of Australian intellectual property law by the claim of George Milpurruru to be recognised alongside the artist as a legitimate applicant in the case on behalf of all the traditional owners of Ganalbingu country, without whose permission Bulun Bulun could not have painted the original work. In 1999 the judgment acknowledged the traditional owners’ right to proceed against the manufacturer in a similar situation in the future, should the artist be unable or unwilling to do so – or “anonymous or long dead”.

As the message sank in that copyright infringements of Aboriginal art would be answered with legal proceedings, unauthorised reproductions of Aboriginal originals, which had been endemic in the tourist industry in 1988, virtually disappeared. But rock art still beckoned as one last realm of artistic terra nullius. In 1995 Riptide Churinga P/L produced a range of Tshirts bearing images from an ancient rock art site known as Deaf Adder Creek. The site itself was virtually inaccessible without the guidance of its traditional owners. Churinga must have copied the drawings of Eric Brandl, the first western researcher to visit and record the Deaf Adder figures and author of the only substantial publication on them. As the first ‘materialisations’ of these images, whose execution had required skill and technique, Brandl’s drawings were copyright. His book had been published in 1973 by the Australian Institute of Aboriginal Studies AIATSIS, the statutory body that had financed his research and thus had a claim alongside Brandl’s estate to be the holder of the copyright. Brandl’s dedication of the book “to Mandarg and Murululmi and their descendants”, the traditional owners of Deaf Adder, without whose cooperation he could not have located or recorded its art, formed a legal basis following on from the R&T Textiles decision, for the inclusion of the contemporary custodians in the action. On behalf of the other parties, AIATSIS proceeded with a letter of demand to Riptide Churinga. Churinga responded immediately, denying the accusation of copyright infringement, but agreeing to cease production of all products bearing the offending designs, deliver up the unsold shirts and pay an undisclosed amount of damages. They also issued a public apology regretting any “cultural or other harm that its activities may have occasioned to the Badmardi clan, AIATSIS or Brandl’s widow. The perception of rock art as being in the public domain, open to copying and reproduction from any source had been successfully challenged. Another way had been found within the western legal system to assert indigenous control over the commercial fate of traditional imageries – even those for which copyright had never existed.

If the Deaf Adder case illustrated that a clever lawyer will always find a way, what was happening in the tourist industry shows that businessmen are not far behind. Reproductions of Aboriginal originals were now replaced by caricatures of Aboriginal art: genericised motifs so thoroughly de-contextualised as to be unrecognisable to contemporary custodians of the various indigenous artistic traditions from which they had been plucked by ‘in-house’ design teams. Copyright law affords no protection against this sort of bastardisation: you cannot copyright art styles like the X-ray forms of Arnhem Land or Western Desert ‘dot’ painting which are fused and confused by exponents of the ubiquitous ‘look’ of pseudo-Aboriginality.

But many other Australian producers grasped the promotional opportunities presented by authenticity conscious consumers and began entering into licensing agreements with Aboriginal artists for commercial application of their designs. Swing tags were introduced stating the artists’ Aboriginal credentials to attract consumers influenced by considerations of ‘authenticity’. In 1999 the National Indigenous Arts Advocacy Association introduced a trademarked label of authenticity denoting Aboriginal design or production that could be attached to goods by certified artists and producers. The value of the label as a marketing scheme which will promote consumer confidence in the products of those who uncontroversially fit its criteria of authenticity seems immediately obvious. But unless its use becomes much more widespread than at present, it will have little effect. In two years a disappointingly small number of artists have signed up for the scheme, citing costs and resentment at bureaucratic procedures for the certification of their Aboriginality. As the US experience has shown, bureaucracy and identity politics is a potent mix. The apparently straightforward criterion of Indigenous authorship on which the Australian Authenticity Mark scheme seeks to rely could prove complicated and divisive. There is a sixty-six year history of attempts by the indigenous arts and crafts industry in the United States to establish a similar system of authenticity labelling under the Indian Arts and Crafts Act (1935, amended 1990). The fraudulent Native American product that the legislation was designed to check has increased exponentially, apparently unhindered by the now quite draconian penalties imposed under the Act, while Native Americans have become embroiled in increasingly bitter debates over the issue of certification.

The law is slow and clumsy and it may not reflect indigenous worldviews adequately, but none of this makes legal action using the laws that are currently available futile, as the repercussions of the copyright campaign in Australia convincingly demonstrate. Putting obstacles like the threat of legal action in the way of the fast buck merchants is an effective deterrent, consumers can be educated to consider issues of cultural integrity and manufacturers can be induced to increase their dealings with indigenous artists and interests – if only for commercial reasons. All it takes is individuals like Wandjuk Marika and Eddie Mabo who have the courage and determination to defy ridicule and legal orthodoxy and insist that western law must provide natural justice.

Vivien Johnson - Writer and Researcher

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