Aboriginal Art and Copyright
An Overview and Commentary Concerning Recent Developments
The recent protection accorded to Aboriginal copyright by Australian Courts has been the subject of considerable interest in Australia and internationally, particularly as it deals with the issue of the use of copyright principles to protect cultural interests associated with indigenous works.
This paper gives an overview of key events in this protection to the present time, and looks at some issues for the future of the protection of Aboriginal copyright interests.
Aboriginal artists have been involved in litigation to protect their copyright on an almost continuous basis since 1988. These cases have been the subject of an exhibition curated by Dr. Vivien Johnson of Macquarie University in the mid 1990s, which included a catalogue depicting many of the infringements discussed in this paper.
THE T-SHIRTS CASE
The flurry of litigation started in 1988, Australia’s bicentennial year, with an action brought by John Bulun Bulun, and other Northern Territory artists concerning the unauthorised reproduction of their artworks on T-shirts.
Despite initial opposition, interlocutory injunctions were consented to before the Federal Court in Darwin and ultimately the proceeding settled on the basis of a payment of a sum of $150,000, much of which was distributed to the artists and families concerned (save for costs which were reimbursed to the funding agencies involved).
While the dispute did not go to any judicial determination, it was considered that some precedents had been set, in particular laying to rest any suggestion of there being no copyright in traditional Aboriginal art.
One of the challenging aspects of the Aboriginal copyright litigation has involved attempts to create meaningful links between the interests of the artists and the culture and practice of the western legal system. In the Bulun Bulun case, the difference in approach was simply illustrated by the outcome of a meeting in Arnhem Land to work out how to divide the monies secured from the proceeding. It was suggested that there be a pro-rata allocation by reference to the number of T-shirts made of each of about eight or so artistic works of different artists caught up in the dispute. This suggestion was rejected, with the artists deciding that they should share the damages equally, even though one artist’s work was much more extensively used than the others, as, it was said, they had all suffered equally.
It should be appreciated that there is religious content in some Aboriginal art, the origins of which stem from imagery associated with ceremonies. Many paintings, for example, record aspects of the creation stories of tribes. Important artworks have the status of expressions of title to land. Some paintings are valuable documents. It may be permissible to allow reproductions of these documents, or even to sell copies made under licence of tribal owners and managers of tribal property, but the custodians of images are under an obligation not to allow anything improper to occur, such as an inappropriate reproduction.
THE $10 NOTE AND THE “MORNING STAR”
The next major case which followed the Bulun Bulun case involved claims by a north eastern Arnhem land artist named Terry Yumbulul of unauthorised reproduction of a pole that he made known as the “Morning Star Pole” on the 1988 commemorative ten dollar bank note. The “Morning Star” ceremony is a very important ceremony, and the pole plays an important role in the ceremony. Mr. Yumbulul complained that his permission had not been obtained to reproduce the pole on the bank note with the result that he believed that the importance of the pole had been diminished by an inappropriate reproduction.
There was a resolution of the claim between Mr. Yumbulul and the Reserve Bank, which unfortunately for him did not involve the Bank conceding to Mr. Yumbulul’s claim for conversion damages in relation to the bank notes. But it still involved a gesture of recognition by the Reserve Bank towards Mr. Yumbulul and the payment of some money. Thereafter there ensued litigation between Mr. Yumbulul and his then former agent who, as it turned out, had negotiated the arrangements for reproduction for the Morning Star Pole. The matter concluded unsuccessfully for Mr. Yumbulul in a judgment of the Federal Court which was concerned basically with whether there was sufficient permission given by Mr. Yumbulul to permit the agent in question to allow for the work to be reproduced on the bank note. The judgment, in the proceeding of Yumbulul v. Reserve Bank of Australia & Ors. is reported at (1991) 21 IPR 481.
Both prior to and after this time, there have been many other cases involving unauthorised reproductions of art works which were more or less resolved at interlocutory stage.
THE CARPETS CASE
It was almost predictable that there would be a substantial infringement, noting the extent of small scale infringements. Such a substantial infringement occurred between 1992 and 1994 by way of importation of carpets made in Vietnam which reproduced a number of important and well-known Aboriginal art works.
The case started in a most unusual way.
As there were so many copyright issues involving Aboriginal people emerging through the period of the late 1980s and early 1990s, a group of activists involved in the area set up an organisation to manage Aboriginal copyright interests which was known as the Aboriginal Arts Management Association, and today known as the National Indigenous Arts Advocacy Association. The organisation received many enquiries for clearance of reproductions and generally became a point of reference for complaints of infringement.
In August 1992, interests associated with a company, which became known as Indofurn Pty. Ltd., wrote to Aboriginal Arts Management Association and informed it that the company was involved in the manufacture and importation of carpets made in Vietnam which reproduced certain well-known Aboriginal artworks by living and deceased artists. The letter enclosed photocopy reproductions of a number of the carpets together with copies of the original artworks which were the subject of the reproductions. A cheque was enclosed for $750 and it was advised that 50 carpets of 2 metres by 1 metre in dimension had been landed in Australia at a landed cost of $180 per carpet and that the cheque represented a payment of 8% of the landed cost. The Association proceeded to object to the activity and subsequently ascertained that the carpets were being brought into Australia and sold, some as large as 2.7 metres by 3.5 metres, with price tags in excess of $4,000. Under the suggested royalty payment, the artist would have received about $68 royalty in respect of a carpet which was selling for over $4,000. The cheque for $750 was not banked, but returned.
Despite the objection of the Association and subsequently solicitors acting on behalf of the Association, Indofurn continued its activities and eventually imported a total of about 850 square metres of carpet, or about 200 carpets, of which it sold about half prior to being injuncted at the end of the first week of the trial. It transpired that the balance of the carpets were delivered up to the artists and an order made that the property in the carpets be treated as belonging to the artists in question.
The claim centred on the alleged breaches of s.37 of the Copyright Act 1968.
There were a number of quite important copyright questions at stake, which were considered at trial.
One of those issues concerned the appropriate application of tests to determine the substantiality of reproduction, with the trial judge, von Doussa J, adopting a liberal approach in favour of the Aboriginal artists.
The determination that there had been substantial copying followed, I believe, a strong preference to prohibit the unfair and unauthorised practices of Indofurn in the circumstances.
Another key issue in the case concerned the determination of sums to be paid by way of general damages and further damages, noting that the claim for conversion damages yielded something of a windfall, it being based on an agreed sum for landed cost on importation which turned out to $190 per square metre. In fact, the conversion damages yielded an award of approximately $90,000. The judge was concerned to take this windfall aspect into account in making an award in relation to general damages by way of depreciation in the value of the copyright, which was awarded at $12,000. This sum was based on a notional adoption of an award of $1500 for each of the artists and their estates, and was influenced not only by the quantum of conversion damages but also by a view that the artists had no intention of making any commercial exploitation in their own right of the art works, none of which were considered appropriate for commercial copyright exploitation. The judge considered that insofar as a loss in commercial potential resulted from the infringement, such loss would most likely be one arising from diminution in the value of the copyright because the art works had been degraded by the commercial use to which they had been put by the respondents. There was no evidence of the suffering of any loss of monetary return and accordingly, the judge considered that a sum recognising the claim but not of any great significance should be awarded.
On further damages, the judge gave detailed consideration to the application of relevant principles having regard to cases such as Williams v Settle , wherein consideration was given to an award of further damage in the case where distress was caused by a copyright infringement, as well as Ravenscroft v Herbert and New English Library Limited and Autodesk Australia Pty. Ltd. v Cheung. The judge was concerned with the flagrancy of the conduct which continued despite warning and wanted to factor in compensation for “culturally based harm”. Consideration in that regard was given to a number of cases concerning claims for losses by Aboriginal people unable to fully participate in ceremony due to personal injury, on the basis that the artists in this case gave evidence that their position as controllers of the rights in the art works in Aboriginal terms were compromised by the unauthorised reproduction, the blame for which was to rest at their feet, irrespective of whether their actual conduct was blameless in the western sense. The award for additional damages was fixed at $70,000 and together with interest, the total claim for damages came to approximately $190,000 of which part was awarded against two non-executive directors who were also joined in the proceeding.
The decision concerning the non-executive directors was the subject of an appeal to the Full Federal Court. Whilst the appeal was not directly concerned with issues pertaining to the protection of Aboriginal copyright, the outstanding question it raised concerned the issue of effective enforcement of compensatory orders.
The position of the non-executive directors was that no evidence was effectively adduced against them, save for the fact that they were served with the Statement of Claim which identified the infringements in question and that the conduct continued beyond the time of service of the Statement of Claim. The non-executive directors did not give any evidence at trial, but were held liable as joint tortfeasors in respect of the infringement by their company under s.37 of the Copyright Act. It was necessary to show that they were joint tortfeasors rather than “authorisers” pursuant to s.36 by reason that the provisions of s.36 did not extend to the conduct prohibited under ss.37 and 38.
The trial judge had regard to the current state of the law as regards the obligations of directors to manage their companies and considered that they failed in such obligations by not causing their companies to cease engaging in the conduct in question upon being notified. The only factual issue raised in their favour was the evidence of the managing director who said that following service of the Statement of Claim he advised the non-executive directors, albeit incorrectly, that the infringing conduct had ceased. There was, of course, no evidence that the non-executive directors relied on this representation.
The Full Federal Court overturned the decision as regards the non-executive directors by a majority constituted by Jenkinson and Beazley JJ, (with Lee J in the minority). The majority judges generally considered that the non-executive directors, given the state of the evidence, had not been shown to be joint tortfeasors. Beazley J particularly noted that whilst the non-executive directors may have been in breach of their obligations as directors to their company, this did not mean that they had breached their duty in respect of their obligations to third parties which would make them joint tortfeasors, with it being required to be shown that they had their hands on their infringing conduct. Both Lee J on appeal and von Doussa J at first instance, considered that the fact of notification of the infringing conduct and that the conduct continued beyond notification was sufficient to found a basis for a claim of liability of the non-executive directors as joint tortfeasors given their obligations as directors to manage their company.
COMMUNAL RIGHTS
Most recently, von Doussa J has given consideration to the proposition of clan groups have an interest in copyright works depicting imagery in John Bulun Bulun v. R & T Textiles Pty. Ltd.
This proceeding involved claims by an Aboriginal artist and a clan group in respect of copyright infringement. The copyright owner Mr. Bulun Bulun, of T-shirt case fame, received remedies to which a copyright owner is normally entitled by way of settlement of claims against R & T Textiles.
Nevertheless, as a test case, the action proceeded on behalf of the clan owners of rights in the art work in question on the basis of the proposition that they were equitable owners of copyright in the art work. They asserted such right on the basis that they, in effect, controlled the copyright in the art work, and that they were the beneficiaries of the creation of the art work by the artist acting as trustee on their behalf. Accordingly, they claimed to be entitled to a form of collective right with respect to the copyright in the work over and above any issue as to authorship.
The case provided an opportunity for the Court to give consideration to the nature of relationships between clan groups and artists with respect to the creation of traditional art works. In so doing, the Court had an opportunity to give attention to one of the shortcomings of copyright protection to date addressing private rights of ownership in artworks in a manner inconsistent with notion of communal ownership which corresponded with perceptions of ownership held by artists and their communities. In other words, it was sought to bridge an obvious gap in the treatment of the problem of infringement as between western and communal law.
While von Doussa J held that there was no need for any order as such in favour of the clan owners of the claimed rights, he considered that the clan group was nevertheless entitled to claim to be able to protect the copyright in the art work. In doing so, the Court gave detailed attention to the customary law pertaining to the relationship between the artist and clan group. This involved the taking of evidence from clan leaders in Ramingining in Arnhem Land, rather than in Court, and also an inspection of the site the subject of the art work in question.
Of particular interest, the respondent in the proceeding did not take any role in the case brought by the clan group, but rather the claims being made by the clan group were challenged by the Federal Minister for Aboriginal and Torres Strait Island Affairs and the Attorney General for the Northern Territory, both of whom sought to intervene in the proceeding. Much of this intervention was concerned with the issue of claims of native title and rights attaching to native title in land, but in the case of the Federal Minister extended to the issue of the remedies available to the clan group.
Von Doussa J considered that a fiduciary relationship existed between the artist and the clan group and that the artist had a fiduciary duty towards his community accordingly. Whilst the artist was entitled to pursue the exploitation of the art work for his own benefit, he was still required by reason of this fiduciary obligation to not take any steps which might harm the communal interests of the clan in the art work.
Having found the existence of a fiduciary relationship, von Doussa J considered that equity imposed on the artist as fiduciary an obligation not to exploit the artistic work in a way which was contrary to the laws and customs of his clan and to take action required to protect the artistic work pursuant to his standing as copyright owner.
His Honour noted that, whilst the artist had availed himself of the appropriate remedies, had he not been in a position to do so equitable remedies would have been available to the clan. Thus, had the artist failed to take necessary action, a remedy might be extended in equity to the beneficiaries by allowing them to bring an action in their own names against the infringer and the copyright owner. In such circumstances equity would impose a constructive trust on the legal owner of the copyright in favour of the clan as beneficiaries. A practical application of these principles would involve a clan group being entitled to take steps to protect an artwork of a deceased artist where the trustee of the artist’s estate failed or refused to take action appropriately required by the clan.
This judgment represents a novel approach to the protection of interests under copyright principles outside of the conventional bounds, as they are understood, of copyright protection pertaining solely to the rights of authors or assignees. Whilst the judgment is specifically directed to the rights of clans arising under customary Aboriginal law and practice, there may be other applications of these principles in circumstances where it could be said that a copyright work was created pursuant to fiduciary duties and obligations.
OVERVIEW
There are a number of overriding observations and comments I believe arise from a consideration of the above cases:
There remains a tremendous amount of work to be done to ensure that the legal system is meaningful to Aboriginal people. There are some aspects of the judgments of von Doussa J which I would respectfully suggest show a strong determination to seek to unite western copyright principles with the need to deal with issues of indigenous cultural harm, such as in the treatment of further damages and even in the interpretation of the issue of substantial reproduction (in the carpets case) and in the way the judge dealt with the issue of communal rights in artworks arising from the principle of fiduciary duties and obligations (in the communal ownership case).
Not surprisingly, there are enormous linguistic gulfs and gulfs in understanding between Aboriginal people and western people in dealing with the legal process. This was illustrated during the carpets case when certain important evidence was given in a tribal language. The language in question was very obscure and the translator was the son of the person giving the evidence. An apparently simple question was asked by counsel which then was translated at great length. Thereafter there ensued a discussion between the translator and the witness, the subject of which remained quite unknown to those listening, this discussion continuing for quite some time. The exchange ended with the request by the translator for the question to be asked again.
The cases provide something of a case study for the protection of copyright of groups readily thought to be helpless, such as visual artists generally. Some say that the cases have put people off wanting to deal with Aboriginal art. This does not seem to be made out by the huge market demand for products reproducing Aboriginal arts, and by the buoyant Aboriginal art market generally.
Hopefully, the cases have helped to give strength to the market, which represents a unique avenue for financial independence for a good number of Aboriginal people.
The focus on the cultural aspects of copyright protection is of particular interest providing a broader perspective on the impact of copyright protection than can often be deduced from the emphasis given to copyright as a purely economic right, as emerges so much in the contemporary case law in copyright and in the highly corporatised world of copyright exploitation.
A language of understanding is being developed through the copyright cases, which is still in a very basic form, but may become useful to assist in communication between white and black people on other fronts. Whilst applying age-old copyright principles, there has been a natural accommodation of aspects of the Aboriginal way, which sets a basis for establishing a meaningful link between white and black law and custom.
Colin Golvan
Barrister,
Owen Dixon Chambers,
205 William St.,
Melbourne, Vic. 3000,
AUSTRALIA
Email: golvanc@ozemail.com.au
GOLVAN ARTS MANAGEMENT • PO Box 766, Kew, Victoria 3101 Australia • golvan@ozemail.com.au