. : 3 z 5 z 5 3 3 8 . % = B 0 z z C ILLiad TN: 96443 Journal Title: Oxford Companion to Aboriginal Artand Culture Volume: Issue: Month/Year: 2000 Pages: 471-81 Article Author: Johnson, Vivien Article Title: Cultural Brokerate: Commodification and Intellectual Property Imprit Call #: ART NX590.A1 094 2000 Location: Bixler Bookstacks Item #: CUSTOMER HAS REQUESTED: Mail to Address Pablo Garcia Pinar (pgarciap) Spanish department Lovejoy Warevile, ME 0490122. Cross-cultural exchange 22.1 Cultural brokerage: Commodification and intellectual property The phrase ‘selling the Dreamtime’ has long served to articulate misgivings about the commodification of Australian Indigenous cultures as ‘Aboriginal art’ (and more recently ‘Aboriginal and ‘Torres Strait Islander art’). Many within Western Desert society at first opposed in these terms the Papunya painters’ [see 9.4, 9.5] initiative in commit- ting their Dreamings to the Western art world, but later recognised that the painting movement had become so widespread as to constitute a new form of collective expres sion, which could potentially strengthen (rather than undermine) its foundations in the Dreaming—and also provide cash-strapped Aboriginal communities with independent income. As the millennium approached, Western art analysts finally came to the same conclusion, proposing reconceptualisation of the industry in terms of ‘cultural broker- age’: that is to say, sophisticated intervention in mainstream society in which artists are brokers, seeking to exchange non-Indigenous access to the iconography and narratives of the Dreaming for Indigenous economic, political, and cultural benefits, including recognition of their ownership rights in that culture (see rights in art}—and the land to which it is inextricably linked [see 21.2]. To consider the commercial application of Aboriginal and ‘Torres Strait Islander artistic traditions only in terms of Indigenous motivation and agency, however, is in its own way as one-sided as the victim-oriented perspective of cultural colonialism that concepts like ‘cultural brokerage’ are intended to supplant. In this history, other players also figure—for better or worse [260] ‘The appropriation of Australian Aboriginal imageries by commercial and nationalis tic interests is but the most recent chapter in a century-long history of plunder and involuntary hybridisation of Indigenous visual traditions ushered in by European colo- nialism and its artistic aftermath. The early twentieth-century pioneers of modernism ‘enacted Europeans fascination with the exoticism of the original inhabitants of ‘their’ far-flung empires, whom they regarded as primitive and uncivilised. Ethnographers and travellers, themselves pioneers of the contemporary global phenomenon of cultural tourism [see 18.1], brought back works of ‘primitive art’ from Africa and the Pacific to metropolitan Europe, as ethnographic curiosities (see 21.1, 21.2]. Western artists exposed to such objects borrowed heavily from the works of these Indigenous artists. But though they were artistic revolutionaries, the early modernists were also creatures of their colonialist times, treating the artistic traditions which were their inspiration like vacant territories to be exploited. Compounding the offence, the commercial design industry proceeded to plagiarise not only the modernists’ work but also the Indigenous originals from which it was derived, thereby placing once culturally specific religious 47122. Cross-cultural exchange 472 260, Proclamation of Governor George Arthur to the Aborigines, 1 November 1828. Oil on wood, 36 x 22.8 cm. This pictorial proclamation was isued by Governor ‘Arthur in response to an Indigenous complaint that his proclamations were ‘gammon because Aboriginal people could not read them. '*Read then”, said the Governor, pointing toa Picture’ The picture says that all the Fesidents of the colony are equal before the introduced system of law—but for nearly 200 years it would be ‘ust a pretty picture’ iconographies in circulation, in mass consumer culture, as empty symbols of ro cised Otherness [see 20.1]. It is by now a familiar scenario, but because the chapter comes so late in this larger history, its action moves beyond both coloni and modernism into the continuing struggle of Indigenous artists and communities regain control of their collective destinies. ‘Aboriginal art was generally overlooked in the first flurry of modernist appropriati in Europe at the beginning of the century. The tribal custodians still jealously gua the Dreaming imagery from the prying eyes of the outside world, which dismissed as.a‘people without culture. In the local context, however, Aboriginal art was access enough to arouse parallel passions for the non-Western and ‘primitive’ in early tralian modernists like Margaret Preston, who in the 1920s proposed that all Austr artists adopt the traditional imagery and techniques of Aboriginal art as the basis of distinctive, national art style. Preston has been criticised for her blithe indifference to cultural significance of the design clements whose appropriation she advocated, but her admiration for the aesthetic qualities of Aboriginal art she was a voice crying in Social Darwinist wilderness. Moreover, the attempts by Preston and her handful of iates to popularise Aboriginal imagery and techniques, at a time when Aboriginalitself had received little public attention, may have contributed to the economic viability over the next twenty or thirty years of Indigenous bark-painting enterprises in Arnhem Land (notably at Yirrkala, where senior clansmen had been painting clan designs on bark for the museum and private collectors’ market since 1936). Only in central Australia, however, where the Hermannsburg School [see 9.1] of land- scape watercolourists founded by Albert Namatjira (4.1; 36, 42, 1/1, 115] had managed (o tap into the increasingly lucrative tourist market [see 18.1], had Aboriginal art achieved anything like the kind of visibitity and profitability which its ‘classical’ forms ‘came to enjoy in the late 1990s, Critical acclaim was snobbishly denied this great pioneer of Aboriginal art in his lifetime. Nor was serious recognition extended to the bark- painting traditions of Arnhem Land until the final decades of the twentieth century. In the 1950s and 1960s the market for bark paintings was still largely confined to ethno- graphic museums, government departments, and private collectors of what the auction houses currently call tribal art’ However, a wave of ‘Aboriginal-inspired’ imagery, much of it directly copied from these Aboriginal originals (as reproduced in museum publica- tions) swept through Australian fashion and design houses during this period. These precursors of the contemporary ‘imitations industry’ began as cottage indus- tries, supplying souvenirs for occasions like the Queen's visit in 1954 and the 1956 Mel- bourne Olympics. In their quest for a localy identified style, non-Aboriginal designers seized upon Aboriginal art as if it were a common Australian heritage which they could make use of as they saw fit. Copying elements of classical works of Aboriginal art, recombining them at will, mimicking effects like rarrk and x-ray, they effectively ‘invented’ the pseudo-Aboriginal look which was still with us in the late 1990s, No one gave a thought to the artists and communities whose designs were thus casually appro- priated to create an aura of Aboriginality. Australian suburbanites consumed this mer- chandise as avidly as the overseas tourists. They were cheerfully wiping their dishes and stubbing their cigarettes out on it as the news came through of the overwhelming 90.77 per cent ‘Yes’ vote in the referendum of 1967. ‘The triumph of the referendum, which allowed the counting of Aboriginal people in the census and empowered the Commonwealth to make laws for them, belongs to all who campaigned so passionately and effectively through conventional political channels for the ‘Yes’ vote. But it also belongs to the elders of the various tribes and clans who at different times as the century proceeded had authorised exposure of their Dreaming designs to Western culture as ‘Aboriginal art’. In most cases, they knew as litte of the world to which they were consigning the ancient symbols of their cultures as it did of them, but from the treatment they had thus far received at the hands of these arrogant outsiders they understood the necessity of convincing them that they too were ‘cultural people’ (to use the words of Yirrkala elder Gawitrig Gumana [see Gumana family; 32, 257], who participated in this process in north-eastern Arnhem Land as a young man). They believed in the power of their art to communicate the message of their humanity across language and cultural barriers—and the referendum result confirmed the wisdom of the course on which the elders’ authorisations had launched Indigenous culture. Strengthened in their belief in the power of the Dreaming designs to speak to the outside world, the elders took another step away from cultural isolationism with the decision to use the voice of their art to explain to that world the Dreaming Laws which connect Aboriginal people with their land, The first bark painting explicitly to petition for land rights had been presented to the Australian Parliament by the Yirrkala elders in 1963 (see 4.6; 50], but had been met with incomprehension and denial. Aboriginal art had been incorporated into Australia's national symbolism long before Aboriginal people were symbolically incorporated in 22.1 Cultural brokerage 47322. Cross-cultural exchange 261, The Australian ‘one-dollar note, (1964). Watermark: Captain James Cook; designer: Gordon ‘Andrews; front design: Australian Commonwealth Coat-of-Arms and a portrait Cf Queen Elizabeth I back design: interpretation of an Aboriginal bark painting by anist David Malang), together with a representation of other bark paintings and carvings, designers initials are to the bottom left of the tree. 474 the Australian nation through the referendum, but from the point of view of its origina- tors this was an involuntary process over which they had no control. The design of the new decimal currency, introduced into Australia in 1966, indicates the terms in which ‘Aboriginal art was being given the status of official Australian culture: a reproduction of a bark painting by Arnhem Land artist David Malangi [261] was used, without authori- sation by the artist, 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 which are performed at the death of a member of his clan. The design elements were recognised by a former teacher at the settlement where Malangi lived, who broke the story to the press. A deeply embarrassed ‘Nugget’ Coombs, then Governor of the Reserve Bank, ordered Malangi’s contribution to the national currency to be acknowledged with the presentation of a silver medallion and A$1000, offering in explanation of the over- sight that everyone had assumed that the design was the work of some anonymous and probably long dead’ Aboriginal artist. This was the heyday of ‘scientific’ museology in Australia, Teams of non-Indigenous experts pronounced on the ‘authenticity’ of Aboriginal art vis-a-vis their idealised ver- sions of ‘pre-contact’ society. Displays of ‘authentic ethnographic artefacts’ by anony- ‘mous craftsmen—always men—were mounted, for the entertainment and edification of the general public. Bark paintings were exhibited in museums alongside other items of traditional material culture’ all of which, like the Indigenous art brought into Europe at the beginning of the century, had been created to supply this market. However, the museification process mystified the historical circumstances of their production so that they appeared to their audiences to emanate impersonally from a space and time—and ‘a society—unrelated to the contemporary world. Aboriginal art could not speak for the artists and communities who created it because it was already spoken for—by the ethnographers. Submerged in scientific objectifications and overlaid with nationalistic sentiments, Aboriginal art seemed to belong to no one. Nor, it seemed, did the land. The Yirrkala community's protest at the invasion of their lands by mining interests was as incomprehensible to the world at large as was their custodianship of the ancient iconog- raphy in which the demand for justice had been expressed. In 1970 the court to which the community had taken its battle for land rights declared under the doctrine of terra nullius thatthe system of law under which the community operated ‘did not provide for any proprietary interest... in any part ofthe subject land’ So other Australians continued to dry their dishes on the unauthorised copies while the elders’ proclamations of land ownership gathered dust in the museums of the colonising culture.Enter Wandjuk Marika [see Marika family; 37, 71), Yirrkala elder, artist, and musi- cian, who in 1975 succeeded Dick Roughsey [102, 376] as chairman of the Aboriginal [Arts Board of the Australia Council. 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 assem: bled council members and the society they represented to do something about it. Wand- juk 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. In the early 1970s few Indigenous artists had enough contact with the world of Western consumerism even to be aware of the existence of the ‘imitations industry’. Their concerns about the extent of their cculture’s exposure through Aboriginal art were focused on the original works and the institutional contexts which they envisaged for their display. Their own world held no cultural precedent for taking someone else's design and using it to enhance the profi ability of one’s product in the market place. The realisation that this was happening was profoundly disturbing for Wandjuk—as it has been for all the other artists affected by the illicit trade in their imagery. Wandjuk’s agitation led in 1976 to the establishment of the Aboriginal Artists Agency with himself as founding chairman, to be ‘responsible for protecting the copyright of Aboriginal artists, craftsmen and musicians, But it was another seven years before ‘Wandjuk’s insistence on equal rights for Aboriginal artists under Australian copyright law produced any action in the courts. Viewed ethnographically, the very ‘authenticity’ of Aboriginal art was thought to rule out the originality’ required of artistic works protected by the Commonwealth Australian Copyright Act 1968. In 1983, against this tide of opinion, the agency mounted the first ever case in the Australian courts in defence of an Aboriginal artist’s copyright: this was Yanggarriny Wunungmurra v. Peter Stripes Fabrics. ‘Wunungmurra’s (32] statement to the court stressed that he had learnt to paint the Dreaming in question from Gawirrin Gumana's father, who also had rights in the story, ‘but that anyone could tell it was his painting of the Dreaming design on the manufac- turer’s fabric from the distinctive way the long-necked tortoises were drawn, which he likened to his signature. Yanggarriny’s work thus satisfied the minimal condition of ‘orig- inality’ required by the Act, in originating from the mind of the artist. Traditional educa- tional practices require of initiates the creative reinterpretation of inherited designs within the basic parameters laid down in the Dreaming. This kind of individuality is differently motivated from Western-style innovation, but increasingly the work of even the most traditionally-oriented Aboriginal painters is an admixture of both as artists respond to market and critical demand, Yanggarriny won his case: the manufacturer was ordered to pay AS1500 damages to the artist and deliver up all the unsold, infringing fabric. One roll of the cloth was duly returned to Yanggarriny at Yirrkala, where the com- munity performed a healing ceremony over it. The case was the talk of Arnhem Land, but it was not the turning point in the wider campaign for copyright protection for which Wandjuk had hoped; Aboriginal art remained effectively an artistic terra nullius. Ironically, it was the ethnographers’ and curators’ initial refusal to confer the status of ‘authenticity’ on Papunya paintings, in judging them too like contemporary art to be suitably housed in muscums, that precipitated Aboriginal art’s escape into the world of contemporary art—a world which had initially regarded Papunya paintings as too like ethnographic artefacts to be suitably housed in art galleries! The awe-inspiring, large canvases produced by the Papunya artists in the late 1970s and early 1980s—vast ‘deeds of ttle’ to their personal Dreaming countries—were particularly significant in bringing 22.1 Cultural brokerage22. Cross-cultural exchange 476 about the dramatic perceptual shift required for Australian art audiences to see the ‘works of Aboriginal artists as both ‘authentic’ and contemporary art [see 9.5]. Support from major galleries and influential private collectors followed, and by the late 1980s Aboriginal works of art in general, and Western Desert paintings in particular, were hhighly priced and keenly sought after commodities in the contemporary art market. Paradoxical though it may seem, it was this commodification of Aboriginal art that finally made achievable Wandjuk’s goal of preventing its unauthorised reproduction. As producers of increasingly valuable cultural commodities, the entitlement of Aboriginal artists to copyright protection would no longer be denied. In the late 1980s, the boom in the production and consumption of Aboriginal art, which hugely increased its circulation and visibility, met the tourist boom sparked by the 1988 bicentennial celebrations [see Survival Day]; and the ‘imitations industry’ assumed its current proportions and its single-minded dedication to exploiting the pop- ularity of Aboriginal imagery for commercial gain. Aboriginal art images were now vastly more accessible in (legal) reproduction to the wider audience in Australia and around the world—but in the process their exposure to potential copyright infringers had also been greatly increased. As stolen designs flooded onto the tourist market, Aboriginal artists commenced a series of court actions over infringements of their per- sonal artistic copyright. In August 1989, Johnny Bulunbulun mounted a case for copy- right infringement against Flash Screenprinters, manufacturers of a line of T-shirts bearing unauthorised reproductions of his works [see 22.2; 263]. Bulunbulun was sub. sequently joined by thirteen other Aboriginal plaints, Bulun Bulun v, Nejlam Pty Ltd (unreported) only went as far as an injunction preventing further production and dis- tribution of the offending articles. The matter was subsequently settled out of court (with a court-ratified settlement of A$150 000 being paid to the artists by the company), but the injunction still meant that the principle of copyright protection for Aboriginal art, for which Wandjuk had fought for fifteen years, had finally been accepted by the courts. Coming as it did immediately after the bicentennial year, the case attracted con- siderable public attention and support for the artists’ cause, Regrettably, Wandjuk did not live to celebrate this small triumph. The bicentennial year also produced a revival of the elders’ strategy of using Aborigi- nal art to communicate the message of land rights. Alongside the commodification of Aboriginal art had gone an equally intense politicisation. In the words of the mercurial Gary Foley, who initiated this process in his brief term as the first Indigenous Director of the Aboriginal Arts Board in 1984:'All Aboriginal artis political because itis a state ‘ment of cultural survival. As 1988 approached, the struggle to place control of Aborigi nal art back into Aboriginal hands was taken up by articulate, young urban artists who, in their zeal, denounced as cultural thieves and colonialists all local non-Indigenous artists who so much as acknowledged the inspiration of Aboriginal art. The magnificent mosaic designed by leading Papunya Tula artist Michael Jagamara Nelson [see 22.3; 264) in the forecourt of the Parliament House in Canberra became the focus of fierce debate between angry, city-based Aboriginal voices denouncing it as a whitewash of Australia’ shameful treatment of its Indigenous peoples, and the leaders of more traditionally oriented communities like Papunya and Yirrkala who saw it as an instrument in the negotiated resolution of these issues. In June 1988, the elders of northern and central Australian Aboriginal communities presented the Prime Minister of Australia with a second painted petition for land rights known as the Barunga Statement (see 4.6; 39}, and were promised a treaty which never eventuated. The elders’ faith was finally vindi- cated by the High Court of Australia’s historic decision in June 1992 in the case of Torres Strait Islander Koiki ‘Eddie’ Mabo, overturning the legal fiction of terra nullius and.22.1 Cultural brokerage provoking the dramatic changes in legal and social recognition of Indigenous land Tights with which the name of Mabo is now synonymous. Thirty years after the original Yirrkala bark petition [see 4.6; 50], the relationships to land which had been patiently spelled out by generations of Aboriginal artists painting their Dreaming designs were recognised in Australian law under the Commonwealth's Native Title Act 1993. ‘The so-called ‘Carpets Case’ has been described in some circles as ‘the Mabo decision of Aboriginal culture’. In December 1994 the Federal Court of Australia handed down a landmark judgment in a copyright case brought by George Milpurrurru [356], Banduk Marika [see Marika family], Tim Payungka Tjapangarti, and the Public Trustee of the Northern Territory acting on behalf of five other deceased artists against a Perth-based company, Indofurn Pty Ltd [see 262]. The artists were assisted by Colin Golvan, also barrister in the Bulun Bulun case, and the Aboriginal Arts Management Association (AAMA), the Aboriginal Artists Agency's successor as government-funded Indigenous ‘watchdog on copyright issues, which had been formed in 1990 in the wake of the T-shirt case. Milpurrurru (and others) 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. Over three weeks of detailed testimony, every aspect of the unauthori reproduction onto carpets of the work of the eight Aboriginal artists was exhaust si 262. Tim Leura Tjapaltiari Kooralia, 1980. The photograph shows the "Seven Sisters’ carpet produced by Indofurn Pty Lid in the foreground. 47722. Cross-cultural exchange 478 made headlines as one of the biggest payouts in Australian copyright history. Of this, $70.000 was awarded to the living artists for the ‘personal hurt and cultural harm they had suffered within their own communities because they were involuntarily implicated in an offence against Aboriginal laws of intellectual property. The recognition of and respect for Aboriginal Law and custom which the concept of cultural harm implies has led to the case being compared to the Mabo judgment. As Mabo did for land rights, these rulings explode the fiction of artistic terra nullius. The court proceedings for copyright, infringement have given artists a platform from which to draw attention to the Indige- ‘nous laws of intellectual property which have also been flagrantly distegarded in these ‘cases. The court further determined that three ‘adapted’ designs produced by the carpet manufacturers, which used only very small sections of the original works simplified, enlarged, and distorted, were just as much copyright infringements as carpets which reproduced the entire original. ‘The redress which Aboriginal artists have obtained through the European legal system for infringements of their Aboriginal copyright undoubtedly advances the cause of their rights as creative individuals within mainstream society. In Aboriginal terms, however, their right to own and control certain uses of the intellectual property in question rests, not in having originated their ‘signature’ versions of designs but in the tribe or clan having conferred custodianship of those designs on its individual members. Hence the lawyers’ arguments in these court actions, designed to establish that the provisions of the Copyright Act are met by the stylistic individuality of the artists whose copyright has been infringed, were always accompanied by the case on which Wandjuk originally stood his ground: the communal sources of the artists’ subject-matter and inspiration, This issue is central to the case of Bulun Bulun and Milpurrurru v. R & T Textiles, which commenced in the Federal Court in Darwin in 1997. A conventional case of copyright infringement, involving the unauthorised copying of one of Bulunbulun’s paintings onto dress fabric, was transformed into one which attempted to push the boundaries of ‘Australian intellectual property law by Milpurrurru’s claim to be recognised alongside the artistas a legitimate applicant in the case on behalf of all the traditional owners of Ganalbingu country, without whose permission Bulunbulun could not have painted the original work, Milpurrurru's application was designed to produce legal recognition of the inextricable connection between rights in land and in art under In the event, the judge determined that no finding was necessary in this case concerning the legal rights of the other traditional owners to pursue a charge of copyright infringement against the manufacturer, since the artist had already successfully undertaken such action. However, the judge did acknowledge 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. AA second copyright case involving Aboriginal art which went before the Australian courts in 1997 was Harold Joseph Thomas v. David George Brown and James Morrison Vallely Tennant, in which the judge ruled that Harold Thomas [see 12.1], the Aboriginal artist whom history has long recognised as the designer of the Aboriginal flag, was legally the copyright holder of its design. This emblem has become, in the space of twenty-five years, a potent signifier of Aboriginal unity and self-determination, and its protection from cooption by nationalistic or commercial interests without its creator's consent is now guaranteed in law—at least for the artists lifetime plus fifty years. Inthe early 1990s the AAMA had assisted urban-based artists Sally Morgan [see 12.1, 14.5: 41, 384] and Bronwyn Bancroft [see 17.5; 287] to negotiate out-of-court settlements with manufacturers who had illegally copied their work. Design piracy was originally con- fined to the classical traditions of Aboriginal art, but once post-classical expressions:including the Aboriginal flag itself—became as much signifiers of Aboriginality to the general consumer as the traditionally Aboriginal-associated styles, the imitations indus- try wasted no time in robbing this rich, new image bank. While some sections of the commercial design industry habitually plagiarise all imageries available in reproduction, including the work of non-Indigenous contemporary artists, Aboriginal artists are triply exploitable in the Australian context (as will be Torres Strait Islander artists, once their work becomes more widely known and reproduced). Their high-profile images signify to the consumer gaze more than just art; they can also be used to stand for Australian ness and Aboriginality. On the latter count, they are almost indispensable to the tourist industry [see 18.1]. Faced with the success of Indigenous challenges to the doctrine of artistic terta nullius, the manufacturers have begun exploring other ways of achieving, ‘within the law, the requisite intimations of Aboriginality. ‘As copyright infringements of Aboriginal art were answered with legal proceedings, unauthorised reproductions of Aboriginal originals, which had been endemic in the tourist industry in 1988, virtually disappeared. They were replaced with caricatures of Aboriginal art: pastiches of generic motifs so thoroughly decontextualised as to be tuntecognisable to contemporary custodians of the various Indigenous artistic traditions from which they had been plucked by ‘in house’ design teams, Manufacturers hid their usually non-Indigenous authorship under labels like ‘Australian Aboriginal Art’ or even ‘Primitive Art Australia. Copyright law affords no protection against this sort of bas- tardisation of Aboriginal ar xt styles like the x-ray forms of Arnhem Land or Western Desert ‘dot’ painting which are fused and confused by exponents of pseudo- ‘Aboriginality cannot be copyrighted. Another response emerged among some manufac- turers, however, as the message of the copyright campaign also began to get through to consumers of this merchandise. The customers were more interested than before in the ‘authenticity’ of what they were buying, not in the old-fashioned ethnographic sense, but in terms of the authentication bestowed by direct Aboriginal involvement in its pro- duction, Except at the ‘cheap and nasty’ end of the tourist market, producers have responded by entering into licensing agreements with Aboriginal artists for commercial application of their designs (often appended to their glossy catalogues alongside the older generic range). Swing tags stating the artists’ Aboriginal credentials were added for consumers influenced by considerations of ‘authenticity’—but all the while oblivious to the intra-Aboriginal controversies raging around the so-called ‘out of area’ uses of the popular classical styles by many Indigenouss designers. Notwithstanding these still unre- solved issues and the tokenism and opportunism of the manufacturers’ moves, the pos- itive response from consumers began to have an impact on industry practices, to the point where if no artist was credited, this was a fair indication that the design work was either some non-Indigenous commercial designer ‘ripping off” Aboriginal art—or a copyright infringement. Counterfeit Aboriginal artists were unheard of in a market place still wrestling with the strange and unwelcome idea that Aboriginal art was the product of individual artistic effort. The appearance of these impostors in the late 1990s opened up the disturbing prospect of a flood of Aboriginal impersonators and other appropriators of Aboriginal artistic identity, but was also a back-handed acknowledg- ment of the ascendancy of Indigenous cultural expression both in the national psyche and in the projection of Australia’s international image. It would be ironic if the blatant piracy of the imitations industry should turn out to have paved the way for more productive relationships between Aboriginal artists and commercial interests. Nowadays most merchandise on the Australian market bearing ‘Aboriginal designs does not involve illegal copying of the work of Indigenous artists. Although many items are still the work of non-Aboriginal imitators, the products of, ts’ work: 22.1 Cultural brokerage 47922. Cross-cultural exchange 480 Indigenous community enterprises are gaining an increasing share of the market, and the design ranges of the major non-Indigenous manufacturers reflect the increasing inclusion of Aboriginal art practices and artists in the mainstream fashion and design industries. Itis to be hoped that their presence will have the same salutary effect on these industries’ practices with respect to copyright that the actions of Indigenous artists have had in the contemporary art world. The ‘black art scandals’ which were trumpeted by the media throughout the late 1990s [see 21.2] suggest, however, that the imitation industry's attitudes are beginning to rub off on the contemporary art world—where there will be no shortage of notoriety seekers. Aboriginal art’s power to speak to such contentious issues as Indigenous connections to land, cultural and intellectual property rights, and the stolen generations has survived its admission to the rarefied atmosphere of the art galleries because itis more than just art—not only to the Aboriginal artists and communities who make it, but also to its mainstream audiences. Before its recognition in the mid to late 1980s as contemporary art, Aboriginal art had passed through a long phase of incarceration and objectification in the museums, as the plaything of the ethnographers [see 21.1]. The powers attributed to Aboriginal art works, as authentic artefacts bearing cultural witness to the societies which produced them, were already familiar to the audiences who now re-encountered Aboriginal art in the gallery context. But this was cultural witness of a new and pro- foundly political nature, its messages no Tonger subsumed and distanced by the experts’ pronouncements on the ‘ethnographic significance’ of the works within their cultures of origin, The effect of highly publicised artistic and literary fraud has been to undermine the capacity of Aboriginal art to bear this potent form of cultural witness. The impostors subject the entire body of Indigenous art to cultural harm when they mock its ability to speak its own truths to mainstream audiences and to impart visions of Aboriginality. Non-Indigenous artists and writers who cynically claim the right to impersonate imag- inary or real Aboriginal artists are perjurers using the forum of Aboriginal art to bear false witness. In asserting their right to engage in this form of artistic licence, they trample underfoot the rights of those with whom they claim to identify. In the face of its own evanescence and inconsequentiality, mass consumer culture of the late twentieth century was fascinated with the durability and spiritual strength of indigenous cultures, none more than the Aboriginal and Torres Strait Islander cultures ‘of Australia. Yet it refused to recognise that the maintenance of these cultural traditions was founded on the rule of law, in particular the Indigenous regimes of intellectual property which spell out the connection of Aboriginal and Torres Strait Islander peoples to their histories and heritage countries. Indigenous Australians never asked that others be obliged to obey these Laws, which are complex, and whose detailed operation is understood only by those initiated in the sacred knowledge which they encode. They do ask others, however, to respect the fact that these Laws are as important to them as West- cern laws are for members of mainstream society. Indeed, they are much more important, integrating as they do issues of individual identity, intellectual property, and land own- ership with the transmission of culture from one generation to the next. People earn or inherit the right to paint certain Dreaming designs and the country they represent, ttle to which, under Indigenous Law, cannot be transferred to another. The theft of objects bearing someone else's designs carries a severe penalty under Aboriginal Law. As custo- dians of their designs, Aboriginal artists have a legal responsibility to protect them and pass them on undamaged to future generations. ‘The destructive effects of theft of designs on the capacity of Indigenous artists to go on making art cannot be overstated. ‘The special legislative protections which Wandjuk Marika also sought for ancient rock art at sacred sites, for ceremonial forms, and for other aspects of Indigenous visual22.2 Copyright infringement culture not at present covered by the copyright laws of Australia have yet to be devised. Although efforts continue, they have as yet yielded no tangible outcome. Vivien JOHNSON Gray, S.’Aboriginal designs and copyright: Can the Australian common law expand to meet [Aboriginal demands? Copyright Reporter, vol.9, no. 4, December 1991; Golvan, C.,‘Aboriginal artand the protection of Indigenous cultural rights; Aboriginal Law Bulletin, vo. 2, no. 56, June 1992; Johnson, V., Copyrites: Aboriginal Art in the Age of Reproductive Technologies, Sydney, 1996; Kleinert,S,"Drawing the line: Appropriation or inspiration” Object, Winter 1992. 22.2 Copyright infringement: An artist's response In August 1989, Johnny Bulunbulun mounted a case for copyright infringement against Flash Screenprinters, manufacturers of a line of T-shirts bearing unauthorised repro- ductions of his works [see 22.1]. This is his affidavit. | never approved of the reproduction of any of my art works on Tshirts, and never approved the mass reproduction of any of my art works, other than reproduction of photos of my works in art books. None of the Respondents has ever spoken to me, or attempted to speak to me, about the matter. Had they sought my permission, | would not have given it, This reproduction has caused me great embarrassment and shame, and | strongly fee! that | have been the victim of the theft of an important birthright. | have not painted since | learned about the reproduction of my art works, and attribute my inac- tivity as an artist directly to my annoyance and frustration with the actions of the Respondents in this matter. My interest in painting has been rekindled by the efforts, being made on my behalf to resolve this problem, and | am just starting to paint again, although | am doing so in anticipation that this problem will be resolved in the near future. If tis not resolved satisfactorily, | have considered never painting again. My work is very closely associated with an affinity for the land. This affinity is at the essence of my religious beliefs. The unauthorised reproduction of art works is a very sensitive issue in all Aboriginal communities. The impetus for the creation of works remains their importance in ceremony, and the creation of art works is an important step in the preservation of important traditional customs. It is an activity which occu- pies the normal part of the day-to-day activities of the members of my tribe and repre- sents an important part of the cultural continuity of the tribe. itis also the main source of income for my people, both in my tribe and for the people of many other tribes, and | am very concerned about the financial well-being of my family should | decide that | ‘cannot go on painting. My father lived at a mission settlement at Milingimbi where he sold works to the mis- sion. He painted the Dreamings stories of our tribe, the Gunilbingu [Ganalbingul, including Waterhole scenes. He painted such scenes in his own way. | do not have any of his works, and | have never tried to copy any of them. His teaching was of impor- tance in imparting to me the traditional techniques of bark painting, and the Dream- ings traditions and images of our tribe. | am training my own son in the same manner. Many of my paintings feature Waterhole settings, and these are an important part of my Dreaming, and ali the animals in these paintings are part of that Dreaming, Many of the paintings inciude the long-necked turtle, called barnda, the magpie goose, or ‘gumang, the file snake, or bipuan, and waterlily or yarrman. The bands of cross- hatching or rarrk represent marrawurrurr yiritdja [Yiritja] site [263] 481