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First Nations Artists Are Sick And Tired Of People Stealing Their Art

Hundreds of Aboriginal and Torres Strait Islander artists have been forced to seek legal advice to stop their works from being ripped off by those who don’t understand its importance.

First Nations cultures believe their art is a way to pass on their history and knowledge to younger generations, but it is often stolen by those with no connection to the story behind it -- who are just looking to make a quick buck.

In the past 12 months, Arts Law Australia has advised more than 500 Aboriginal and Torres Strait Islander clients on legal issues relating to their artistic practice. That's more than one a day.

Arts Law offers legal services specifically to First Nations people, which address the cultural importance of the artwork and sensitivities around its ownership.

Creating ‘aboriginal style art’ isn’t illegal because copyright can’t protect a style of painting, it can only protect original work.

But First Nations people have said clan-specific styles are an imperative part of their cultural heritage and diverse identities.

In 2016 it was found around 80 percent of 'Aboriginal style' art in tourism markets was fake. Image: Indigenous Art Code/Arts Law.

In 2016, Arts Law, Indigenous Art Code (IAC) and the Copyright Agency found up to 80 percent of Aboriginal products sold in tourism shops were either fake, or untraceable to an Indigenous artist.

Stephanie Parkin, a Quandamooka woman of North Stradbroke Island and Chairperson of IAC, said a persistent issue is “that Australia does not have specific legislation that recognises and protects Indigenous intellectual property”.

“This leaves artists in a position of having to enforce rights under other laws that may not properly recognise unique Indigenous intellectual property rights” she said.

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  • In June last year, the company Birubi Art was fined a record $2.3 million dollars for advertising its products as genuine Aboriginal art, when in fact they were painted in Indonesia;
  • In 1995, current Senior NT Person of the Year Banduk Marika took Indofurn Pty Ltd to court because the company had copied her and other artists’ works and replicated them on carpets without permission or respect for the artwork’s cultural importance;
  •  In 2008, Doongal Aboriginal Art and Artefacts misled customers by having a ‘certificate of Aboriginal authenticity’ on products not painted by people of Aboriginal descent;
  •  In 2009, Australian Dreamtime Creations Pty Ltd had made up an artist by the name of "Ubanoo Brown" and had "certificates of authenticity" on products not made by people of Aboriginal descent.
"Children catching desert frogs after the rain". Image: Supplied.

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First Nations lawyer, Wuthathi and Meriam woman Terri Janke is deeply saddened by the continuation of the production of fake 'Indigenous style' art.

She said not only does this have devastating economic effects on Indigenous peoples, but it also brings distress and pain to the communities who get their Dreamtime stories copied.

"It’s bad enough for any artist, Indigenous or not [to be ripped off]," she said.

"But it’s compounded for Indigenous people because it’s the cultural heritage of the group, we’re responsible to protect it."

“I’ve had artists call me and say they are so heartbroken when their work or clan motifs have been copied that they don’t want to paint anymore."

First Nations artists still don't have the protections for their works they want. Image: supplied by Kathleen Buzzacott "people telling stories, passing on knowledge to the next generation."

Copyright only protects something which has been written down or recorded or stored in a computer system. This poses obvious issues for our Indigenous Australians who have not historically had writing as part of their culture.

Kathleen Buzzacott is an Indigenous Artist from Central Australia. She said many First Nations artists don’t know about the legal protections available to them -- she has witnessed artists being ripped off first-hand.

“Aboriginal people are being robbed, just because they haven’t written it [their knowledge] down doesn't mean it wasn’t our knowledge”.

Both Buzzacott and Janke have explained it’s a custom of First Nations culture for artists to go through a rite of passage to be able to communicate their clan’s symbols and stories to others.

“I have to be very careful with what I draw or tell, because I have to answer to my mother, and she answers to her Elders. It may be someone else's dreaming so I must be very careful,” Buzzacott said.

Kathleen Buzzacott has witnessed first-hand Indigenous artists being ripped off. Image: supplied "Family digging for honey ants".

Lawyer Janke admits Australian intellectual property (IP) law has trouble acknowledging a group of people she calls "the keepers of history" as protectors of Indigenous stories and symbols because IP law is based around individuals, not a group.

She wants a new law to minimise this problem, which she believes could work if the clan could prove a historical connection to certain symbols through copyright which "could lead to more clarity around the process".

"I want it to recognise the rights of groups to own clan motifs or the movements of dances that come from country and their stories of country."

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But IP law wasn’t created to protect spoken knowledge anywhere in the world, that’s not its purpose.

Yorta Yorta woman Sonia Cooper believes this is a multi-dimensional problem, she said you can’t separate art from culture.

"Non-indigenous Australians don’t understand the culture is within the art," she said.

"There is an unusual space for Indigenous IP," she said. "There is a general aspect to it and then there are specific protections that Indigenous people would like to have."

Cooper’s Aunty Jan is an Elder of the Yorta Yorta people, who uses basket weaving to educate and carry on her people’s history and knowledge.

"Basket weaving is more than a craft, it’s more than a skill, it’s traditional, educational and innate knowledge passed down from generation to generation, it’s a way of life for us,” Aunty Jan said.

The fight to protect specific clan symbols and styles is one battle, while educating people within the art industry about how their ignorant actions negatively impact First Nations communities is another.

Organisations such as IAC, Arts Law and Janke’s private firm encounter these issues daily – helping illiterate artists to draw up contracts, providing often low-cost or free legal advice to disadvantaged or remote artists and campaigning for law reform so Indigenous knowledge is fully protected.

Janke is sure that greater opportunity for First Nations people and better protections would allow their art to become a "powerhouse" of the Australian economy.

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