Fakery and Indigenous art can, and does regrettably, take many forms. It is one of the sad predicaments that such vulnerable people are subject to so many challenges to the integrity of their cultural property.

First, there is the fakery of the alleged Indigenous creation of works which are made by non-Indigenous people. Secondly, there is the unauthorised reproduction of genuine works of Indigenous art – copyright infringement. Thirdly, there are works which are falsely attributed to Indigenous artists. Fourthly, though no readily attributed as fakery, there are works which are distorted in their presentation without authorial approval.

The last two categories could be addressed under the moral rights provisions of the Copyright Act and possibly under the misleading conduct provisions of the Australia Consumer Law (ACL) if in the course of trade.

I am going to focus on the first two categories and look at measures to stop trading in fake works.

False Representations of Source of Manufacture

In recent weeks, the Federal Court has given judgment in ACCC v. Birubi Art Pty Ltd [2018] FCA 1595 - http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2018/1595.html. Birubi Art was a wholesaler selling a large range of giftware lines. In particular, it sold a range of boomerangs, didgeridoos, message stones and other relatively inexpensive Indigenous-styled products some of which were designed by an Indigenous person Trisha Mason but which were manufactured in Indonesia, though there was no labelling showing such manufacture. In the case of message stones, these were painted in Indonesia from Indigenous-style images obtained from the internet. Birubi Art had sold 18,000 units of the products.

The labelling (for example, at [123]) referred to Birubi Art being a supplier of genuine Aboriginal art, "and the exclusive worldwide licensee for Aboriginal flag products." It said that the company "supports and promotes ethical dealings with all Aboriginal people". In reference to Trisha Mason, the label identified her as the artist and stated that royalties were being paid to her.

Other labels stated that "Art featured is from originals by Australian Aboriginal artist Trisha Mason" (at [131]).

Some labels had much longer statements about the culture and history of Indigenous arts generally (at [149-150]).

The word Australia appeared on the products (at [133] and [147]), and Indigenous imagery was highlighted on the labels.

The message stones labelling made reference to Birubi Art's association with Indigenous people and arts and referred to the stone as having been part of "Aboriginal life since the Dreamtime" and noted that it was "hand painted" (at [156]).

The products were sold to the public from gift and souvenir outlets. The relevant market for the goods was understood by Perry J to be broad in its scope, and in particular made up of people who "would not be astute to the intricacies of the Aboriginal art world, nor astute to identifying about the likely mode of production or origin (of the goods) …" ([73]). However, consumers could be taken to have identified the goods as having imagery which they would readily associate with having been made by Indigenous Australians. There was no express statement about the place of manufacture.

The ACCC's case was based on implied representations that the products were made by "Australian Aboriginal persons", drawing on the overall impression conveyed by the appearance of the products and the labelling.

Birubi Art defended the action on the basis that the fact of foreign manufacture was not misleading and should be imputed as a reasonable expectation of consumers, particularly given that the products were not expensive and conveyed an impression of being mass-produced.

This case was rejected, other than with respect to some of the claims under s. 33 of the ACL. Perry J placed emphasis on the hand-painted qualities of the various goods, which detracted from the impression of mass-production. With all relevant elements viewed together, there was an overall impression that the goods were made in Australia and hand painted by Indigenous people. It is very possible that a different result might have emerged had prints of artworks been applied to the goods as much was made in the judgment about the representations, and visual impression, that the goods were hand painted.

Section 33 provides that a person must not engage in conduct in trade or commerce "That is liable to mislead the public as to the nature, the manufacturing process, the characteristic, the suitability for their purpose or quantity of any goods." Perry J considered that "liable" created a higher threshold as compared with the misleading conduct provisions in s. 18 (which refers to "likely to mislead or deceive") or s. 29 (also pleaded)) which prohibits the making of "false or misleading representations". In the view of Perry J, the s. 33 test was satisfied with respect to some of the products only due to the extent of the combination of factors.

The case is particularly instructive in protecting at least hand painted products from being represented as Indigenous in their origin where there is foreign manufacture, and would likely have similar application if such works were made by non-Indigenous people in Australia.

Trading in Fake Art

Albeit not concerned with Indigenous art, Vickery J in the Victorian Supreme Court case of Blackman and Dickerson v Gant [2010] VSC 229 (http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2010/229.html) found that an art dealer and valuer selling fake works was held to have engaged in misleading conduct by representing that the works were those of well-known artists known to have painted works in the particular styles of the works being sold.

In that case, Gant was a dealer in contemporary Australian artworks and sold works which appeared to have been created by the famous contemporary artists Charles Blackman and Robert Dickerson. The works were fakes, though they purported to bear the signatures of the artists (see [11]-[16]). Most interestingly, Dickerson gave evidence and declared the work sold under his name as a fake. This evidence was challenged but was accepted by the Court. Blackman was unable to give evidence, but expert evidence was called to the effect that the works sold under his name were fakes, including forensic evidence concerning the likely age of the paper used as compared with the established period in which artworks of the particular style were known to have been created by Blackman. This evidence was also challenged, but was accepted by the Court. For some examples of reproductions of genuine schoolgirls paintings, see https://theconversation.com/the-schoolgirls-of-charles-blackman-haunting-works-from-a-politically-innocent-age-76692. And for examples of reproductions of  genuine Dickerson works, see https://www.gallowsgallery.com/robert-dickerson.

Gant did not give evidence. Nevertheless, Vickery J accepted that establishing misleading conduct did not depend on a finding of fault or intention. He considered that a statement of valuation, provided by Gant, declaring the works to be by the artists constituted a representation of authenticity, which was unqualified, and thus misleading as a matter of fact. Thus, the case of misleading conduct was made out. The works were ordered to be delivered up to the Plaintiffs and were ceremoniously destroyed in a bonfire widely reported by the media.

Infringement of Copyright

The second form of fakery which I mentioned in the introduction concerns copyright infringement itself – being a reproduction which lacks authorisation.

The issue of copyright infringement of Indigenous art has been reviewed in a number of cases and been the subject of extensive academic commentary (for examples of infringing reproductions, see http://www.colingolvan.com.au/archives/138-images-from-the-carpets-case). It is accepted that copyright law is available to protect contemporary depictions of ancient Indigenous art forms, and the Federal Court has also dealt with issues of differences in approach between rights in works as understood in Indigenous customary law and under the Copyright Act in Bulun Bulun v. R & T Textiles Pty Ltd (1998) 41 IPR 513 (http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1998/1082.html?context=1;query=Bulun%20Bulun%20v%20R%20&%20T%20Textiles%20Pty%20Ltd;mask_path=). In that case, von Doussa J accepted that the customary owners of rights in depictions contained in a bark painting made by the artist Bulun Bulun could be protected by tribal owners and managers of the rights to depict such images under principles of fiduciary obligations in circumstances where the artist as fiduciary failed to take proper steps to protect the interests of the owners and managers as beneficiaries. This view was expressed in obiter as the artist in that case did in fact take all appropriate steps to protect the copyright in the work in question, although the issue of the rights of tribal owners and managers was an important feature of "test" aspects of the case.

It is clear than that Trade Practices law, in combination with copyright, provides a potent set of remedies to prevent improper practices in relation to the making and sale of artworks generally, and Indigenous artworks in particular, noting in particular the understanding which emanates from the promotion and sale of Indigenous themed works which convey impressions of Indigenous production.

What is not at all clear is the position of Indigenous themed works which are not promoted as hand-made. The case law, for example, cannot be seen as extending protection to Indigenous-type objects, such as boomerangs or didgeridoos which are not promoted as Indigenous sourced, even if they contain Indigenous imagery, as long as they do not convey an overall impression of Indigenous production.

These leads very much into a discussion about cultural appropriation and whether there is a case for managing this issue at law. This debate has a long history, prompting consideration of an appropriate balance between cultural influence and cultural theft.

With respect to our Indigenous cultures, they are clearly fragile and under often grave continuing threat. My own experience in engaging with Indigenous communities in remote parts of Australia has been both very rewarding and deeply troubling. It is remarkable and very distressing to observe great artworks being created in circumstances where people live in conditions which can only fairly be described as confronting and totally unacceptable.

From a national perspective, somewhat ironically given the terrible day to day circumstances faced by many Indigenous people, it has become impossible to identify ourselves as a nation without reference to Indigenous imagery and the Indigenous depiction of our country. This development has actually placed Indigenous arts in a position of cultural authority notwithstanding the unacceptable ways in which some intermediaries have dealt with the artform. This vulnerability was well illustrated in recent times with the unfortunate case of the loss of ownership of copyright in the work of Albert Namatjira, by the Namatjira family, for a period of 30 years, an issue which received a deal of media attention and which has now been remedied.

There are many powerful and obvious reasons as to why we need to protect the integrity of this imagery from forgery and other improper practices. The impact of Indigenous art on Australian art and national identity over the last 50 years has been profound and enormously influential, enabling Indigenous communities to enjoy cultural recognition and genuine commercial opportunity. This movement shows an important way forward in dealing with issues of the resolution of the great black-white moral question which deeply concerns many Australians.

These issues have transcended from being questions of the application of Trade Practices or copyright law into much larger questions concerning the future of Indigenous cultural identity, livelihood and opportunity. From that perspective, we need to be generous in affording adequate protection to our Indigenous cultures as we look forward to the continuing generosity of insight of our Indigenous artists in return.

Paper given at a IPRIA (Intellectual Property Research Institute of Australia seminar in Novbember 2018