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Law Articles & Essays

Meeting at the waterhole

Magpie Geese and Waterlilies at the Waterhole, 1980, Maningrada, Museum and Art Gallery of the Northern Territory

A copyright lawyer’s adventures in Arnhem Land

I stumbled into the Aboriginal world completely by chance. I was completing the three month reading course to become a barrister in 1988, during which time I was not permitted by the bar rules to take any work. I was at the time blessed with a three-year-old child and another baby due shortly. I had no idea how I was going to get my first brief. Desperation turned to invention.

An ABC radio current affairs program ran an item on Aboriginal demands for a law to protect the copyright in their artistic works. They were complaining about unauthorised reproduction on T-shirts of important artworks. I readily interpreted a solution under conventional copyright principles. To a lawyer trained in copyright, it was obvious enough. I rang the ABC, and spoke with the program’s producer. “Sorry to bother you,” I said. “But I just heard your program, and while I don’t usually ring with my comments and thoughts . . . No new law is required. Copyright will do.”

Next I was speaking with the person who had been interviewed – the artist Lin Onus. Onus was already established as an artist, yet at the time was working as a panel beater to make a living. He had a whimsical and matter-of-fact way – if you’re so smart, he said in so many words, you go sort it out.

And soon after, my close-to-first brief arrived (from Aboriginal Legal Aid) – to take instructions from an Aboriginal artist in Arnhem land, John Bulun Bulun, concerning the manufacture of T-shirts reproducing one of his artworks.

The trip to Garmedi outstation, near Maningrida, to meet Bulun Bulun took almost a day of travel from Melbourne. I was escorted by an entourage from Darwin, on a light plane to Maningrida and then by road to Garmedi – a few shacks by a crocodile-infested river and the most precious and sanctified of places to those who lived there, a place they associated with the beginnings of time and the footsteps of the Creator. This was the land across which the Wagilag sisters travelled in their journey from the sea, as they created the world, just as the God of Genesis had done in another place. The tree where the fabled sisters rested was there, and the river they bathed in was here. The great-grandson of the crocodile they created was sleeping not too far away, and it was better not to get too close. While it was not at all obvious to the uninitiated, the people living in this modest bush camp believed that they were the managers and owners of holy land.

We arrived at about 7pm. My companions came equipped with tins of food for dinner. We were met by John and some others. John was wearing rag-tag black shorts which could barely be seen against the blackness of his body. His deep white and brown eyes had closing lids, which was not a good sign. Trachoma was setting in, and with it the possibility of blindness without cataract treatment (which fortunately was becoming widely available in these times). He put out a limp hand. He was shy, speaking few words.

My hosts asked whether we were staying for tea, which they could organise. Forget the cans of baked beans from Darwin. They were living in the midst of a veritable fresh food and vegetable market. Only city eyes could not see the abundance of food. A shotgun was produced and on cue a flock of very fat (and slow) magpie geese passed overhead – it was dinner time after all. It was the wet season and food for the birds was available in excessive abundance. These birds were flying low with agonised swoops of the wings, due to an excess of feasting. A shot was fired without great accuracy and a heavy bird pounded almost into the fireplace. It was dutifully cooked. In preparation for dinner, a trip to the bathroom was in order, but where was it? A chance to freshen up and so on. I had not noticed a convenience.

“It’s out there.”
“Excuse me, I don’t see it.”
“Mate, the world’s the toilet.”

As the guest of honour, I was offered the best bits – giblets, neck, etc. It was thankfully too dark to make out the shape and contents of the pieces being handed across.

With dinner over, the conversation among our party focused on the big issues – land, the essence of being and so on. I had arrived in a place of great serenity (save for the odd beer can, rusted car bonnet and diseased dog), where man was totally at ease with his environment – an equal among all other living things. Or so I thought – a video recorder and TV were then brought out, a generator turned on, and we spent the rest of the evening watching old US sitcoms.

Bulun Bulun was our principal host and the main plaintiff in our case. One of his artworks of great importance was being reproduced on T-shirts without permission. The artwork in question was done in ochres on bark and was known as At the Waterhole. This turned out to be a less than distinctive title as every work Bulun Bulun painted featured a waterhole. It was his waterhole to police and manage, although I was later to learn that quite possibly he had never been to the waterhole, which was located some hundreds of kilometres away, in a remote spot which had no road access.

All this interest in management had to do with the maintenance of cultural order. If something was done incorrectly, or if transgressions against the cultural order occurred, the manager was to blame if even incidentally an event of misfortune happened.

In Aboriginal terms, Bulun Bulun had the right – and responsibility – to depict this waterhole, and the mythic animals associated with the waterhole, particularly the magpie geese. Though these birds were everywhere to be seen, it transpired that Bulun Bulun was the only artist in central Arnhem Land with the authority in Aboriginal law to depict this bird in an artwork. Here was some copyright self-help as practised among the local people.

The taking of instructions involved our filming Bulun Bulun painting, in order to reinforce his claim of authorship – as it was being said by some commentators that tribal artists were simply reproducers rather than creators. A seemingly ridiculous contention, but such was the thinking at the time. At our request, Bulun Bulun undertook a painting, on a piece of bark which he had stripped from a tree, and which he had been treating for some time to ensure that it would be a satisfactory canvas – he painted on bark using natural ochres (and Western paintbrushes). This in itself required great bushcraft and skill – to find the right piece of bark and then straighten it, and to make sure it stayed straight (without crumbling or wilting or cracking).

There was nothing remotely like a copyist about him. He painted one of his stories, with precision and without reference to any other work, his hand carefully passing over the canvas as he depicted his clan tartan, or cross-hatching, known as rrark – the many criss-crossing lines in the background of paintings which in themselves signify tribal origin. It was his tribal duty to paint the work. He had memorised a complex array of images, which were rendered with great care, and which represented at one level beautiful images, at another level a map, and at another level again a claim of rights – all of which he was depicting while trying to keep his eyes open against the weight of their heavy lids. We filmed his work, and proceeded to make claims of copyright infringement on his behalf against a T-shirt company, which, after a mindless attempt at fighting, capitulated.

Months later, I received a phone call from the Maningrida Art Centre. The painting which Bulun Bulun had done was ready for me to purchase. But I had said nothing about buying a painting. There must be a misunderstanding. I was told that this was not how it worked. As I had asked him to make a painting, Bulun Bulun had determined that it was mine to purchase – and at his carefully calculated and recalculated price. The painting was intricate, and featured a lightning strike expressed by strong arrows travelling from a central circle. The featured image in the painting was the black waterhole called Djulibinyamurr.

Others joined the proceeding brought by Bulun Bulun, and in the end the T-shirt company paid a substantial amount by way of compensation. This outcome was well received, and I quickly became a popular figure in Maningrida conversation – white guy turns up, doesn’t make too much trouble, gets us some money, even buys a painting. The challenge remained to distribute the proceeds of the case.

A meeting was convened at Maningrida and attended by the 10 or so artists then involved and their advisers. Division of the money was discussed. I explained an approach based on the number of T-shirts made with each particular work. Most of the infringing T-shirts had been of the Bulun Bulun work, with lesser quantities involving the work of the other artists. I was then asked to leave the meeting room – not what usually happens to legal advisers, whose advice is meant to be accepted, gratefully and at some considerable expense. Discussions continued for some time, and I was summoned back into the meeting room.

My advice was rejected as confused Western thinking. There would be a blackfella solution. As each artist had been affected by the infringing conduct, they would share equally, even though this result penalised Bulun Bulun substantially. It was obvious. Hubris aside, the business of combining Western and Aboriginal notions of justice and proper outcomes was humbling.

* Originally published in The Australian Financial Review, 6 October, 2006.