Drawing the line on ownership
Author: Anthony O'Grady
Date: 7th April 2007
Source: The Sydney Morning Herald

Controversy surrounds the provenance of many Aboriginal artworks, and the question of who should benefit from them, writes Anthony O'Grady.

ORIGINALLY, Aboriginal art was practical, spiritual and ephemeral.

It was a mapping discipline: a row of goannas, for instance, generally meant "bush tucker is plentiful here". It was ceremonial secret business espousing "the dreaming" that informs each tribe's cultural and spiritual identity.

It was ephemeral, drawn on sand or tree bark, to be returned to the earth.

First transposed to canvas by Papunya Tula artists in the early 1970s, Aboriginal art can be approached from a modernist perspective as daringly abstract. It can be appreciated as a traveller's guide to ancestral land. Many say they feel shock waves of spiritual energy from "the dreaming" within the art.

If none of the above applies, it can still be appreciated as a boldly stated, affordable embracement of indigenous values.

Though its appeal is multi-levelled, Aboriginal art at source is a complex, often mysterious business. There are national organisations but no national standards. Most of the art is channelled through 116 art centres but no two centres are similar, or produce similar art.

More than 100 specialist galleries propagate and promote the art, but there is no national accreditation system, or guarantee of the art's authenticity. And, although the top 25 sales of indigenous artworks total more than $8.5 million, it is rare to find a successful artist who is not on Centrelink benefits. "You just have to be here to understand," say overworked, under-funded art centre managers, explaining why the art process starts with the supply of canvas and paint to artists and relies on an honour system of consignment, rather than a written contract and copyright protection.

"We're sympathetic to that," says Robyn Ayres, executive director of the Arts Law Centre of Australia, which runs the indigenous art legal help initiative Artists in the Black. "We're very aware that most art centres are dedicated to helping the communities. Our message is: we can help make the marketing of indigenous art more equitable for artists."

Artists in the Black started in 2003, after the Myer Report in 2002 sent shock waves through the indigenous art community. The report urged the introduction of copyright protection, resale royalties and major changes to legislation and the administration of art centres.

The report was timely, because the dollar value of the indigenous art market was doubling annually while the payback to artists remained somewhere near subsistence level.

"But it's not as simple as introducing a new contract that doubles artists' fees," explains Ayres. "In many cases, Aboriginal art is an expression of community culture and is painted on behalf of the community."

This channelling of cultural heritage has to be recognised in contracts presented to indigenous artists.

"But contracts only bind the signatory parties," he says. "And though report after report has pointed out that here is an area where indigenous cultural rights should prevail, there has been no legislation to ratify this.

"Legislation was drawn up after the Myer Report to recognise indigenous community moral rights, but the bill was withdrawn to be redrafted. It has never been presented to Parliament."

There is also an urgent need to formulate appropriate wills for Aboriginal artists.

Natalie Mason, a lawyer with DLA Phillips Fox, drafted a sample will that has been circulated to art centres.

"It's important that copyright of the art - quite a lot of it now hanging in museums and earning sizeable income from reproduction in catalogues and prints - is recognised as belonging to the artist and handed down according to the artist's wishes," says Mason. "If the artist dies intestate, that income is most likely retained by the current owner of the artwork."

Mason also included recognition of tribal marriage in the sample will, in lieu of legislation recognising such rites of indigenous culture.

But Mason, who worked as a midwife on Bathurst Island off the Top End before turning to law, agrees that emailing sample wills and contracts is no substitute to visiting art centres to explain their need to artists.

She points out most artists and art centre administrators are not even aware the artist retains a range of potential copyright income after the work has been sold and resold.

Artists in the Black has visited some 27 communities within the past two years (dealing with close to 1000 issues as a result), but that is just nibbling at the edges of a task that stretches through some 10,000 kilometres of northern Australia and encompasses at least 80 different tribal languages and individual cultures.

"Artists in the Black was set up by the Arts Law Centre of Australia through a grant from the Australia Council," says Ayers. "We have funding for two full-time, indigenous legal staff and it is a great benefit to be able to draw pro bono support from a range of law firms ranging from major to specialist.

"The sample will is step one of the process. The second step is to put together a team of lawyers, provide them with cultural awareness training if needed, and cover their travel to the centres and the cost of interpreters to implement the project.

"But to be able to utilise the pro bono expertise that is on offer, we first have to find the funds to visit the centres and evaluate the artists' needs."

Still, says Ayres, it is inevitable that properly constituted contracts will replace the honour system and verbal assurances that remain the standard deal for indigenous artists.

"A written contract makes terms clear. The problem with informal or oral agreements is, when results don't match expectations, it's most often the artist who feels ripped off."

Conversely, dealers and galleries have rejected or marked down the value of art produced by relatives of top-selling artists. "To the community, the art is legitimate," Ayres says. "An artist may feel it is time for someone else to continue painting the community's stories. The name on an artwork doesn't have the same significance to the tribe as it does to the fine art market. An appropriate contract would tell the community this is the way the market works."

Ayres says that legislation is needed to establish a resale royalty for indigenous art. "There is currently no mechanism for artists to share the windfall of rising prices for their work," she points out. "It's not uncommon for the market value of indigenous art to rise out of all proportion from its original sale price, sometimes within four or five years."

Johnny Warangkula Tjupurra's Water Dreaming at Kalipinyapa is an oft-quoted example. Sold by the artist in 1972 for just $150, it was most recently resold in 2000 for $486,500. A 5 per cent resale royalty would have returned $24,000 to Tjupurra's community. In the past 15 years, a 5 per cent resale royalty would have benefited indigenous communities by $3.75 million, adding to or partially replacing the $13.5 million in government funding that now supports indigenous art.

The resale royalty cause does have political support, but not a lot from Coalition benches. Its most vocal supporter is Labor's Peter Garrett.

Indigenous art has a fine art high end where entry level is above $10,000. This top end of mostly Top End art turns over some $100 million a year. The mass market, crafts end is also estimated at $100 million a year. This market is predominantly aimed at the tourist trade.

Always a tough earn, it has been hit hard by the decline of tourism after September 11, 2001. It is also undercut by fakes, says Brad Parnes of Rainbow Serpent, which operates six Aboriginal Arts and Crafts stores, turning over $4.75 million last financial year.

Parnes bought an Indonesian-made didgeridoo on the internet, paying $US17.34 (about $21.50).

"Something like that," says Parnes, "would cost me $200 to buy and I would have to sell it for $500 or more."

Parnes says the fake plays just as well as the real thing. Yet, says Rainbow Serpent's Caroline Friend, the tourist trade demands ridgy-didge artefacts, at lowest possible cost. "We are constantly asked," she says, "whether we're selling genuine crafts and how much is going back to the artist."

This concern of integrity is particularly vital to the middle market for Aboriginal art, worth anywhere between $100 million and $300 million a year.

This market - for art between $500 and under $10,000 - simply did not exist 20 years ago. A major reason for growth is that there are so many individual and community styles, it's hard to be a one-off buyer. Also, artists constantly reinvigorate their style. Tim Jennings of the Mbantu Gallery near Alice Springs, which specialises in the art of the Utopia region, has observed the process.

"We had an exhibition of Utopia art last year," he says, "Three generations of painters were on display. It was amazing to see how each generation developed new art styles while still expressing traditional stories. The evolutionary process was very obvious."

Utopian artists (predominantly women) traditionally painted on fabric. Knowing that market was limited, Jennings gave the women canvas and acrylic paints.

"Originally they used traditional earth and wildflower colours," says Jennings. "Then they experimented with acrylic colours and the art changed dramatically."

A new, profitable era of Utopian art was launched, with work from the late Emily Kame Kngwarreye, Minnie Pwerle, Barbara Weir and Kathleen and Gloria Petyarre in ever-rising demand.

There is, to be sure, a degree of faddishness in the appreciation of indigenous art. Often, it seems, the more remote the tribe, the more prized the art. There is also a degree of reverse snobbery from tribal artists to indigenous urban artists who incorporate traditional techniques such as dot painting in their work.

"Basically though," says Tim Jennings, "the indigenous art market is potentially a thousand-million-dollar business per year."

America, Jennings says, is a virtually untapped market, showing all the signs of coming on board.

All that's needed is more effort from galleries and dealers and more support from the Government in espousing the art's diversity and cultural significance.

Meanwhile, says Robyn Ayres, it is timely that indigenous artists begin sharing in the wealth already there.

The Senate Standing Committee on Environment, Communication, Information, Technology and the Arts is considering submissions and hearings on Australia's indigenous visual arts and craft sector. Their report is expected by July. Submissions and transcripts of hearings are at: [http://www.aph.gov.au/Senate/committee/ecita-ctte/indigenous-arts/index.htm)