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Case study 2: Flash T-shirts

In March 1989, bark painter Johnny Bulun Bulun took an action that was believed to be the first of its kind in Australia: he began proceedings against a T-shirt manufacturer who had reproduced his work without his permission. He based his action on the provisions of the Copyright Act and the Trade Practices Act.

Two years earlier, the Queensland-based Flash Screenprinters had reproduced Bulun Bulun’s 1980 painting Magpie Geese and Waterlilies at the Waterhole. Calling the T-shirt design ‘At the Waterhole’, Flash included a swing ticket indicating that it was ‘a design originated from Central Arnhem Land’. Later, the company produced a second ‘At the Waterhole’ T-shirt, this time adapting another of Bulun Bulun’s paintings, Sacred Waterholes Surrounded by Totemic Animals of the Artist’s Clan (1981), and including elements believed to have been drawn from the works of other artists.

In a deposition, Bulun Bulun - who lives at the Gamerdi outstation in central Arnhem Land - gave an insight into the significance of the imagery depicted:

Many of my paintings feature waterhole settings, and these are an important part of my Dreaming, and all the animals in these paintings are part of that Dreaming...

The story is generally concerned with the travel of the long-necked turtle to Gamerdi, and by tradition I am allowed to paint [that part of the story]. According to tradition, the long-necked turtle continued its journey, and other artists paint the onward journey.

(quoted in Golvan, 1989)

Originality

Bulun Bulun’s action was important because it challenged the assumption that Aboriginal artworks based on traditional Dreaming designs are not original and that therefore they are not protected by copyright. In preparing the action, counsel for Bulun Bulun obtained a deposition from Margaret West, curator of Aboriginal Art and Material Culture at the Northern Territory Museum of Arts and Sciences. She noted that:

... the works are clearly products of considerable skill, and reflect facets of the Applicant’s [Bulun Bulun’s] distinctive style. I note, for example, the fineness and detail of the cross-hatching, which is one of the most important features in any Aboriginal bark painting … I am not aware of any other artist who depicts magpie geese, long-necked turtle and water snake at waterholes in the fashion of the Applicant ... I would rate the Applicant as amongst the best exponents in his artform, just as one might rate a particular Western artist as a leading exponent in his particular artform of, say, sculpture or watercolour painting.

(quoted in Golvan, 1989)

Outcomes

After hearing evidence, the Federal Court in Darwin granted an injunction preventing the manufacture and sale of the T-shirts. It was a ruling that formally established Aboriginal artists’ entitlement to protection from unauthorised reproduction.

As it happened, investigations in support of Bulun Bulun’s case revealed that thirteen other Aboriginal artists had grounds for legal action against Flash Screenprinters, and proceedings were also begun on their behalf. On the day before trial, the parties negotiated a minimum settlement of $150 000, and the withdrawal from sale of all infringing T-shirts.

Although the degree of infringement varied greatly, the artists determined that they would share equally from the sum, since each felt they had suffered equally. Johnny Bulun Bulun in an affidavit captured the nature of this suffering:

This reproduction has caused me great embarrassment and shame, and I strongly feel that I have been the victim of the theft of an important birthright. I have not painted since I learned about the reproduction of my artworks ...

(quoted in Golvan, 1989)

[Information for this case study has also been sourced from ‘The Case of the Flash T-shirts’, in V Johnson, Copyrites: Aboriginal art in the age of reproductive technologies, National Indigenous Arts Advocacy Association and Macquarie University, Sydney, 1996.]

Discussion points

  • Identify the different things (material and non-material) that were stolen from Johnny Bulun Bulun and others in this case.
  • What assumptions do you think Flash Screenprinters made when they set about producing the T-shirts?
  • The development of technology involves investigating, devising, producing and evaluating. For each stage, name something that Flash Screenprinters should have done.
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