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Fair game: 'Aboriginal' designs in the marketplace

Perhaps of more concern than the illegal reproduction of Aboriginal art is the erosion of value that occurs when ?imitation? Aboriginal art is mass-produced and merchandised.

In a research project that began in 1992, Dr Vivien Johnson and her students examined the popular distribution of Aboriginal art styles in commercial forms such as T-shirts, cloth bags, greeting cards, packaging and craft works. The project identified a great number of commodities that are neither produced by Aboriginal people nor return any benefit to Aboriginal people, and yet make quite deliberate use of styles and images that are perceived in the community as 'Aboriginal art'.

The project also identified commodities such as tourist kitsch that were designed and/or made by Aboriginal people but which some say reinforce the commercial trivialisation of Aboriginal art forms. These products bear designs that have been drawn from existing sources and then adapted to produce the kitsch, in a method similar to that of many non-Aboriginal commercial designers.

Examination of such commodities reveals the limits of legal protection that exist for Aboriginal (and other) artists. Although many distinctly 'Aboriginal' features can be identified, most of these derivative objects are created in such a way that copyright infringement is almost impossible to establish. (Bear in mind also that recourse to the legal system tends to be a last resort for many Aboriginal people, for whom it is expensive, intimidating and associated with law enforcement and other power structures.)

The use of 'adapted' Aboriginal art on earrings (Johnson, 1998) shows the way in which the souvenir trade is able to walk the legal line of appropriation. Identified in the sociology project mentioned above, the earrings bore the label 'Dreamtime: Aboriginal designs'. The hand-painted earrings did not draw from any particular artwork in a way that would allow them to be described as a copy. Rather, they referred to Aboriginal designs by taking on a form and character that is associated with Aboriginal art. The earrings did not infringe any artist's individual rights, but, as the policy statement of NIAAA declared (see below), Aboriginal people are concerned about their artistic styles and symbols.

To understand this concern, it is worthwhile to consider the cross-hatching styles employed by artists from Arnhem Land. Rarrk cross-hatching is more than a decorative device. Ownership and spiritual significance are embedded in the use of the technique.

Moreover, the right to use, and modify, cross-hatching styles is carefully restricted in many Arnhem Land communities. Artists may go through a long process, in which they receive increased authority and responsibility, before they are able to use the technique freely. Western Arnhem Land painter Peter Marralwanga, for example, only began to produce works for sale at the age of 50, because it was not until then that he had the seniority to produce his distinctive rarrk patterns, with their unusual angles and colours (Caruana, 1993).

Under these circumstances, it is not difficult to imagine how such artists - and their communities - might feel when non-Aboriginal artists use imitative cross-hatching to produce works for publication and profit. Similarly, the portrayal of totemic animals and figures in quasi-traditional styles may give great offence to people for whom similar representations have special meaning.

The potential degree of offence is all the greater for the fact that many Aboriginal people set such careful jurisdictions over what symbols, and what country, they are entitled to portray in their art. Kimberley artist Peter Skipper has said:

I still think about right back where I come from ... I don't put him riverside, I can't draw him riverside. I want him that my side desert. This one mine - I been walking round here. I can't paint him 'nother place belong another country. That?s a danger. And I don't want to paint business way [secret designs].

(Skipper, 1991)

Similarly, Banduk Marika said:

I have to worry about what designs I use. I can't use a design from Western Australia or Central Australia. I couldn't do that; I have to use a design that comes from North-Eastern Arnhem Land - a design that comes from my clan only.

(Marika, 1987)


Vivien Johnson's sociology project referred to above also identified another means of getting around copyright restrictions - the 'repackaging' of images. In one instance, works by Papunya Tula artists were removed from a publication, fastened onto board and laminated to produce 'Western Desert place mats'. Such re-use of a product is an infringement of the artist's moral rights as it is presenting the images in another form from which it was created, diminishing the value of the artwork and the standing of the artist (see 'Moral rights' for a discussion).

Although NIAAA no longer exists, the sentiments expressed below, which are based on its policy statement, reflect the views of many who aim to protect Indigenous cultural and intellectual property (ICIP).

Statement on the use of 'Indigenous' images and designs by non-Indigenous artists
(based on the policy statement of the former NIAAA)

Proponents of Indigenous cultural and intellectual property (ICIP) rights are concerned about the number of non-Indigenous artists, writers and performers who have been incorporating Indigenous Australian cultural expression into their works.

Images such as the rainbow serpent have been employed by non-Indigenous artists in their artwork. Specific Indigenous styles have also been used such as the rarrk and x-ray styles. Even more flagrant is the use of sacred images such as the wandjina and the distortion of significant cultural items such as the Torres Strait Islander head-dress. These are distinctly Indigenous images and designs and are associated with central themes in Indigenous Australian cultures.

Recognition of ICIP rights will protect the legal and cultural rights of Indigenous artists. In line with international developments concerning the rights of World Indigenous peoples, specifically the principles and guidelines of the Special Rapporteur of the United Nations Economic and Social Council's Sub-Commission on Prevention of Discrimination and Protection of Minorities, non-Indigenous artists, writers and performers must respect the cultural and spiritual significance of Indigenous people and refrain from incorporating elements derived from Indigenous cultural heritage into their works without the informed consent of the traditional custodians. It is important that Aboriginal and Torres Strait Islander people have control over the development of their own forms of artistic and cultural expression, as well as its interpretation and use by others.

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