Law Articles & Essays

A Sorry Tale

Aboriginal Flage - Flag design © Harold Thomas

The Aboriginal flag – which in 1995 was proclaimed as a national flag under the commonwealth Flags Act – was not the product of a competition or commission.

It was created as a flag of protest in the early 1970s, but, not being subject to ‘‘crown copyright’’, is protected as a copyright work that ironically is privately owned.


The Protection of "At The Waterhole" by John Bulun Bulun

Aboriginal art and the recognition of private and communal rights

John Bulun Bulun is an Aboriginal artist who lives in the area of Maningrida, an Aboriginal township about 600 kms. east of Darwin in central Arnhem land.

When I first met him in 1988, he lived in an outstation, known as Garmedi,with a population of about 20 people. Bulun Bulun was one of a group of three highly successful bark painters living at the outstation, with the other artists being Jack Wun Wun and his son Michael. These artists painted on bark, using traditional ochres (applying the ochres mixed with water using both traditional and Western brushes). They would also use glue to give a sheen to the surface of the bark on which they were painting. Their work was often very elaborate, combining complex tribal imagery with detailed cross-hatching.

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.”


Copyright, Guns and Money: Copyright and Culture in the Digital Age

IN THE TEACHING of copyright, it is usually said that copyright is an economic right. In Arnhem Land, they think otherwise. In 1990, I attended a meeting of Aboriginal artists in Maningrida. These artists had been involved in a copyright infringement case concerning the unauthorised reproduction of works of art on T-shirts. The case had settled, and the purpose of the meeting was to discuss the division of the spoils. The case involved a number of artists and different infringements by the same infringer.

Aboriginal Art and Copyright - An Overview and Commentary Concerning Recent Developments

There has been a proliferation of litigation in recent years involving claims of copyright in Aboriginal artworks. This article gives an overview of this litigation and comments on some of the key issues arising out of the cases. It is observed that Aboriginal artists have been vigilant protectors of their copyright rights, and that whilst protection under the Copyright Act 1968 has addressed a number of practical concerns of Aboriginal artists, there is still some way to go before the law meets the genuine concerns of Aboriginal communities for appropriate protection for Aboriginal artistic and cultural rights.

Aboriginal Art and the Protection of Indigenous Cultural Rights

A miracle of fair proportions is occurring which is having a significant impact on white/black relations in Australia. Though one could well understand black people retreating from the white world in which they find themselves, the opposite is occurring in relation to the willingness of black people to share their cultural heritage with the rest of  Austrlalia and the world.