Stolen art on stolen land: Aboriginal art and copyright

In conversation with artists about the difficulties of protecting Indigenous Cultural and Intellectual Property.

Photos courtesy of Boomalli Aboriginal Artists Co-operative

The question of whether an inherent degree of politics comes alongside being an artist is difficult to answer. Some art is openly and loudly political, some less so. However, in a country where art and culture belonging to Aboriginal peoples is stolen and mass produced for profit; where proceeds aren’t returned to the communities from which the art came; many Aboriginal artists have no choice but to be political with the art they create.

Art and activism are perhaps never quite as intertwined as in Australia, where communal copyright is non-existent, and traditional art styles and cultural practices are not recognised as belonging to Aboriginal and Torres Strait Islander peoples under colonial law.

Alternatives exist, but the traditional laws of Indigenous peoples are not recognised by the Australian legal system. Indigenous Cultural and Intellectual Property works as an alternative across the world to protect traditional Indigenous art and culture. However, Australian law only protects some aspects of Indigenous Cultural and Intellectual Property. Works created by individuals are protected, while styles that belong to groups are not. Traditional languages, dances, medicines, or methods which have not explicitly been written down are also left without any form of protection. 

When I speak to Stephanie Parkin, Chair of the Indigenous Art Code, about navigating Aboriginal art and copyright, it’s clear that there’s a lot of complexity involved when working within a legal system that doesn’t prioritise community ownership or recognise cultural property. 

“For a lot of artists, their works are statements of who they are as individuals and their positioning in their communities and more broadly within Australian society,” says Stephanie. “I definitely think art by Aboriginal and Torres Strait Islander artists is a powerful mechanism to convey those messages to the broader public. And yes, inherently, they are political… in the context of where those artists are from themselves, and the messages and stories they convey.”

Stephanie works with Indigenous artists to ensure they know their rights when it comes to copyright law and licensing agreements. “All artists have agency and authority in their own decision making processes,” she tells me. And “while the law is still in one sense trying to catch up, there is a way for people to do the right thing and to engage appropriately.”

The Indigenous Art Code is a voluntary code that artists and dealers can sign up for to show their commitment to ethical and transparent standards when dealing with Aboriginal art and copyright. The Art Code exists primarily for artists, to educate them on their rights when it comes to licensing agreements, and ensure they maintain agency in these transactions when they occur. 

Boomalli Aboriginal Artists Co-operative is an organisation in Sydney which works with the Indigenous Art Code, encouraging their members to subscribe to it, and encouraging them in their artistic careers otherwise. Boomalli has been important to artists Peta-Joy Williams and Darren Charlwood.

The co-operative was established in 1987, its primary goal being “to promote Aboriginal Artists whose language groups exist within the NSW state”. They achieve this through education, protecting copyright, hosting exhibitions and supporting regional artists, who make up over half of their membership. Both Peta-Joy and Darren are Wiradjuri artists who grew up in and around Sydney, and who have a connection to Redfern, Eora College and Boomalli that has influenced much of their lives.

The Art Code aims to prevent fake Aboriginal art and dodgy transactions between artists and sellers, which is a prominent and recurring issue within the Australian art world. Without being educated on the details of licencing agreements, Aborginal artists can often be persuaded to enter into agreements which see them losing income and copyright to their artworks.

One such agreement, and probably the biggest case in Australian popular consciousness, is that of WAM Clothing holding the exclusive licensing agreement with the copyright owner, Harold Thomas, for the use of the Aboriginal flag for clothing, digital and physical media. WAM Clothing is part-owned by Ben Wooster, whose previous company was fined $2.3 million for selling fake Aboriginal art. This private copyright is a slap in the face, and means that sport teams, not-for-profits, community groups and activist organisations risk fines for using the Aboriginal flag. It’s emblematic of a bigger problem with the way the rights of Aboriginal artists and art is conceptualised within the courts and the legal system.

Beyond this private ownership of the flag, copyright has always been a significant issue for Aboriginal art. When Aboriginal artists are forced to work under the umbrella of colonial laws, it is difficult for ownership of styles and more abstract cultural knowledge to be properly protected. This is especially true of works belonging to a particular culture or language group, for which community custodianship is central, but not recognised under Australian law. “If it’s different enough, but it’s in an Aboriginal style, most of the time there wouldn’t be any recourse for artists to pursue it,” says Stephanie. “That’s one of the deficiencies of the Copyright Act.” Australian copyright law was never created to protect Aboriginal culture or Aboriginal art in the first place.

Darren and Peta-Joy, as Wiradjuri artists, both make it very clear to me when I speak to them that they are not dot painters. “I’m very much an anti-dotter when it comes to the stereotype of what Aboriginal art is. It really annoys me when people call themselves Aboriginal artists and they sit there and do dots. That’s not where that comes from,” says Peta-Joy.

Dot painting comes from the desert, so for Aboriginal artists from the south-east of the country, their traditional styles are very different. “It’s not my story to tell,” says Darren. “I know very clearly what I can and can’t do, what I can and can’t say.”

Darren is enthusiastic when he speaks to me, and it’s clear from the start that he has a lot to say about activism, copyright and culture. During our conversation, Darren talks passionately about the harm in telling cultural mistruths, of telling the story of a country you’re not from and that hasn’t been passed down to you. It’s not the kind of cultural theft that first springs to mind when thinking about copyright in Aboriginal communities, but in using others’ stories to create art and make a profit, you’re still taking “one tiny fraction of a greater philosophy, belief and spirituality and using it to benefit yourself.”

There are hundreds of different Aboriginal nations and language groups across this continent, each with unique history, cultural practices and stories. Amalgamating them and blending them into one is harmful not only because it erases the nuances of cultural practice which make it more likely to be lost, but also because it waters down the connection that an individual has to their own heritage.

Darren tells me about one artist in particular who is guilty of profiting off the stories of other Aboriginal groups. “He’s someone who will just appropriate anyone’s story and then turn it into a money making venture, cloak it in a delusion that [he’s] fighting for culture and that [he’s] an activist’ when really he’s just taking money away from communities.”

The person he speaks about is of Biripi heritage, but recently created an artwork based around a Dharawal story, which he then sold for an enormous price tag. Not a cent of that profit went back to the people whose story it is to tell. “This is an oral tradition and a story that people still share,” Darren says. “You can trace it back and go and talk to the guys’ ancestors who this happened to.”

Darren’s views on activism stem from his interactions with this artist, and with others like him. He’s very much of the mindset that the streets are not the only place where activism happens, and that it’s not always the best way to go about creating change, especially when some people are there with the wrong intentions – to platform and benefit themselves at the expense of others.

Nonetheless, he understands the necessity of demonstrating. “In my family and in any Aboriginal family, you don’t have to go through many degrees of separation to come across someone who’s been stolen, someone who’s killed themselves, or someone who’s so caught up in being incarcerated and the police system that their lives are simply just that.” This statement isn’t easily digestible, but nor is the reality of what Aboriginal people in this country face on a day to day basis. New South Wales was the first point of colonial contact, and so much robust cultural practice and language has been lost as generation after generation have suffered ongoing colonialism and intergenerational trauma.

“We’ve gotta do it, we’ve gotta march. But there’s a line in the sand for it, and when you go over it you lose your point,” Darren says. “And it’s a really easy point to lose in Australia because we live in a racist country; we live in a country that wants Aboriginal people to fail.”

Darren is a teacher and program coordinator at The Royal Botanic Gardens in Sydney, and his passion for his work is overwhelming. Darren understands he can make change by educating and engaging the kids who come through the gardens, and this is where he sees his purpose.

“For me, being an activist is still being here, still teaching culture, still being proud and still being seen. I do that through education… You change little kids minds and you change the world.”

Darren spoke with conviction that the next generation are the ones who will address some of the systemic issues that impact Aboriginal people in Australia, and that educating them would make all the difference. “We need to celebrate culture, embrace and love culture, teach it, live in it, that’s activism, that is being an activist. That is what we’re fighting for and that is the desired outcome at the end of the day,” he says.

When I speak to Peta-Joy Williams, she tells me that she walks in two worlds. She shares a love of teaching with Darren, and much of her life has been spent connecting deeply with learning and teaching, predominantly at Eora College. She also has an understanding that reclaiming language is an essential part of continuing to practice culture. She learnt her language, Wiradjuri, only recently. Her great-great-grandmother was the last person in her family to speak Wiradjuri, and now Peta-Joy and her son have been the first to bring it back.

“I felt really empowered when I first learnt my language. It was like putting a piece of my puzzle back in, something that was taken away from me and I was reclaiming. And then to be able to share it and teach it with young people and elders was an amazing thing,” Peta-Joy says. “My end goal is to be walking down a street and hear two people speaking in Wiradjuri to one another.”

Peta-Joy tells me she needs a strong reason to create art. “I can’t paint because I see a vase or a bowl of fruit and I go look! I can do it, but why? I have to have a reason,” she says. Politics isn’t always the reason, but often she just needs to get a piece out, and can’t rest or move onto another artwork until it’s done.

“Probably the most political piece I’ve done recently is No Voice, which was the Aboriginal flag. Instead of the yellow sun in the middle, I’ve got ‘no voice’ written in yellow with the copyright symbol for the C.”

The fact that Aboriginal peoples cannot use a flag that should belong to communities reinforces the way that intellectual property law has failed the people it should be protecting. Indigenous Cultural and Intellectual Property has been commercialised within Australia’s colonial context, and has often been used, as in the case of the flag, without respect or community consent, and in the case of the artist who sold a Dharawal story, without any form of acknowledgment or compensation for the community.

There are gaps in colonial copyright law which mean that unless Indigenous people can meet the requirements of them, they are unprotected and their rights open to exploitation. Communities are suffering because of this, not only because it is shameful that non-Indigenous people are able to profit off them, but also because it allows the watering down and devaluing of tens of thousands of years of cultural knowledge and practice.

Stephanie Parkin puts it perfectly. “The artwork is more than just the physical piece or the aesthetics that people look at while it’s hanging on the wall. The value that it really has… is the stories and the handing down of traditional knowledge and the understanding of family connection and understanding of why we’re here and what our purpose is.” 

Editors note: This article was updated at 11:22 pm, 31 March 2021, to amend statements regarding WAM clothing.