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Law Articles & Essays

A win for Namatjira

Albert Namatjira - photograph by Pastor S.O. GrossAlbert Namatjira (photograph by Pastor S.O. Gross, courtesy of the Strehlow Research Centre)

Aboriginal and Torres Strait Islander readers should be aware that this commentary contains images or names of people who have since passed away.

Following a concerted media and legal campaign, the Namatjira Legacy Trust has succeeded in securing the ownership of the copyright of Albert Namatjira following a recent resolution of claims made by the Trust against the long-time copyright owner Legend Press.

The circumstances of the transfer of the copyright were quite extraordinary (I wrote about the copyright in a previous article for ABR Arts). After Arnold Bloch Leibler, pro bono lawyers for the Trust, sent a letter to Legend Press, the philanthropist Dick Smith became involved in helping the parties to resolve the dispute. Dick’s father had worked for the father of the present owner of Legend Press, and Dick said that he had a particular wish to see the long-running dispute finally resolved. In the outcome, and without any prompting or request, Dick paid a donation to the Trust of $250,000. With the receipt of the donation, the Trust paid $1 to Legend Press to obtain the assignment of the whole of the copyright in the large body of works of Albert Namatjira.

The announcement of the resolution was received with great enthusiasm by major galleries, and the arts community generally, as well as by the Namatjira family. Since the assignment of the copyright by the Public Trustee of the copyright in 1983 for $8,500, the family has received no payments from the use of the copyright, such payments being retained by Legend Press, which also exercised strict control over the use of images of Namatjira’s work by major public galleries. This control meant that public galleries regarded themselves as being largely prevented from reproducing images of Namatjira’s works in catalogues.

The Trust has appointed Viscopy, the collecting society for the visual arts (administered by Copyright Agency), to act as its agent in the management of the copyright. A number of significant requests for reproduction have been received and an income stream established for the benefit of the Namatjira family. This income, together with the Dick Smith donation, is expected to have a significant impact on the welfare of the Namatjira family living in the remote community of Hermannsburg in the Northern Territory.

The Trust is continuing in its legal campaign against the Northern Territory Government, claiming that the Public Trustee breached his obligation of trust in the original transfer of the copyright in 1983. The Public Trustee at the time, John Flynn, has spoken publicly about this issue earlier this year, and has candidly (and honourably) acknowledged that he made a number of key errors in proceeding with the transaction. He has expressed his regret. It is hoped that these claims can also be amicably settled, as occurred with the claims against Legend Press.

The Trust will also continue to campaign for legislation to have Namatjira’s copyright declared perpetual. It is currently due to expire in 2029. With half of the copyright term lost due to the loss of copyright in 1983, it would be fitting if the injustice of this loss is remedied by the copyright term in his work being extended indefinitely. As I noted in my previous article, perpetual copyright has been granted in one case in the United Kingdom, involving the copyright in Peter Pan, with the proceeds obtained from copyright usage being received by a Children’s Hospital in London.

The recovery of the copyright was achieved through a powerful confluence of factors, being the coming together of: a committed activist campaign on the part of the Big hART (which produced a stage play and film about Namatjira) and which set up the Trust; the sustained and very well researched media coverage by Rosemary Neill of The Australian; the pro bono legal support of Arnold Bloch Leibler solicitors; and the extraordinary philanthropy of Dick Smith.

With determination, influence, and good fortune running hand-in-hand, the outcome does demonstrate what can be achieved through an issue-specific approach to engaging with important needs in the Indigenous community. In this case it has liberated the work of a national icon and placed him right back in the forefront of national awareness and appreciation – where he emphatically belongs.

First published by the Australian Book Review,  ABR Arts, November 2017