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Case study 4: 'The carpets case'

A landmark in the legal protection of Aboriginal art occurred in 1994. After a 14-day trial, three Aboriginal artists and the estates of five other deceased Aboriginal artists were awarded damages totalling $188 640 for infringements of their copyright.

The action was taken in response to the activities of the Perth-based Indofurn (known as Beechrow at the time of the infringement), which imported carpets from Vietnam and sold them in Australia for as much as $4 000.

The works of prominent Aboriginal artists, living and dead, were reproduced on the carpets. The works were copied from an educational portfolio of Aboriginal artworks produced by the Australian National Gallery and a calendar produced by the Australian Information Service. Through text accompanying each artwork, both of these source publications made it clear that the depictions related to creation stories of spiritual significance to the artists. According to evidence given in court, the portfolio and the calendar were at the Vietnamese carpet factory when one of the directors of the company visited it.

Permission to reproduce the artworks was not sought from any source prior to the production of the carpets. Once the carpets were produced, Beechrow did write to the Aboriginal Arts Management Association (AAMA, later known as the now defunct NIAAA) to seek the artists’ permission. The letter was misdirected. When there was no response, Beechrow released the carpets for sale in Australia. All artists represented were unaware of this activity.

The offence to the artists was magnified by the medium of reproduction. Reproduction on carpets, where the images were to be walked upon, would never have been considered by a number of the artists, for whom the works had particular and sensitive purposes. To varying degrees, the artists also had responsibility to their respective communities. They were therefore accountable to other people for the ways in which the images were used. This meant that the effects of the infringement went far deeper than they might have done if the issue had been restricted to a question of individual ownership.

Legal issues considered

In their response, the carpet importers raised the issue of the originality of the works represented (artworks must be original in order to attract copyright). However, this issue was ruled to be irrelevant, the trial judge concluding that the works - even those based on often-represented Dreaming themes - exhibited ‘intricate detail and complexity reflecting great skill and originality’.

In order to establish infringement, it was also necessary to satisfy the court that the carpets had reproduced substantial parts of the source artworks. This led three artworks to be examined in detail. In each case, the trial judge considered that substantial copying was evident. In all, eight works, each by a different artist, were involved in the case.

The judge was satisfied that the company knew (or ought to have known) that copyright would have been breached if the carpets that were exact reproductions had been made in Australia.

The carpet importers altered some artworks. The judge found that these alterations were made ‘for the purpose of saving themselves labour’. The inaccuracy of some of the reproductions was considered by the judge to be potentially offensive to the traditional owners of a particular design, given that some of the artwork included secret parts of Dreamings that were only known and understood by those who have close knowledge of the cultural significance of the story. Part of the damages awarded against the company was assessed to compensate the artists for personal suffering and humiliation.

Breaches of the Trade Practices Act were also identified. Labels indicated that Aboriginal artists had designed the carpets and, further, that these artists were paid royalties out of sale proceeds. Since such labelling was false and likely to lead consumers to believe that the company had licence rights and that royalties were being paid to the Aboriginal artists, or that the carpets were made with the approval of the Aboriginal artists, the judge determined that it was misleading and deceptive. He also observed that, if the carpets were not substantial copies (as argued by the importing company), it would have been false to represent them as having been designed by Aboriginal artists.

Outcomes

In awarding the record sum, the trial judge included special punitive damages. This recognised a number of factors - in particular, the cultural hurt suffered by the artists as a result of the company’s persistent denial of their copyright.

A component of the damages ($43 222) was awarded against two silent directors who took no part in the day-to-day management of the company. This part of the judgement was overturned on appeal on issues relating to corporations law and directors’ liability.

The damages were allocated to the artists as a group. This was in line with their wishes, enabling the proceeds to be shared by the traditional owners of the designs and images. The judgement included orders that any unsold carpets be handed over to the artists. It also included the following observation by the presiding trial judge, Von Doussa J:

The reproduction of paintings, which depict Dreaming stories and designs of cultural significance has been a matter of great concern to the Aboriginal community. Pirating of Aboriginal designs and paintings for commercial use without the consent of the artist or the traditional owners was common for a long time. The recognition of the sacred and religious significance of these paintings, and the restrictions which Aboriginal law and culture imposes on their reproduction, is only now being understood by the white community.

(quoted in Janke, 1995)

Update on the case

The determinations on the copyright issues in the case and the liability of the active director are still valid. It should be noted that no payment of damages has been made to the artists or their next of kin because Indofurn Pty Ltd has been wound up and the active director declared bankrupt.

Discussion points

  • Why is the medium of reproduction important to so many Aboriginal artists?
  • A number of factors led the court to add to the damages awarded in this case. What were they?
  • Before being imported into Australia, the carpets in this case were produced in Vietnam, where there are no copyright laws. Why was the Australian marketing ruled to be illegal? What opportunities might still exist to exploit Aboriginal art without permission? Suggest ways in which this could be prevented.
  • Make a list of the law reform issues to do with culture and heritage that are currently being pursued by Aboriginal people. Also make a list of law reform issues currently being pursued by artists in general. Discuss, compare and contrast the resulting lists of issues.
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