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Symbols, motifs and ownership: marketing and copyright issues
Paperbark woman: Aboriginal and Torres Strait Islander fashion design

Exploitation of creative work can be a problem for any artist. For Aboriginal and Torres Strait Islanders the problem is often more complex as the symbols and motifs used in their designs also hold cultural significance for a particular group. Exploitation of the design impacts not only on the artist but also on the group.

A positive example of the use of copyright law by an Aboriginal and Torres Strait Islander would be the use of Jimmy Pike's artwork by Rowe Fabrics, Sydney for an interior fabric. This was Pike's first licensing agreement in home furnishings.

Jimmy Pike,

…entered into a series of business arrangements with Culley and Wroth of Desert Designs. These would protect the integrity of his art (and separate the paintings and the production/marketing of limited edition prints) but enable additional income to be derived from the licensing of his designs and the strategic development of the Desert Designs company. (O'Ferrall, 1995: 3)

Not all Aboriginal and Torres Strait Islander people have had such positive experiences.
In 1994

… a case of theft of Aboriginal imagery occurred when a businessman …had carpets made in Vietnam with images stolen from Aboriginal paintings, and falsely labelled them to give authenticity. The artists took him to court and won. He was ordered to pay compensation but went bankrupt.
(The Koori Mail, 1998: 15) this became known as The carpet case.

Another significant case involving the infringement of the copyright of an Aboriginal artist has been resolved. The case, brought by the Sydney-based artist Bronwyn Bancroft with the assistance of the Aboriginal Arts Management Association, was listed for hearing in the Federal Court on December 12, 1991.

The clothing manufacturer Dolina Fashion Group Pty Ltd supplied Grace Bros stores with an 'exclusive' dress design for a major promotion through its network. It was alleged that Dolina's stylists had requested an Aboriginal look from the Japanese fabric maker Sastani to present as the front line of their fashion range.

The fabric maker supplied a print in three colour ways, which, it was alleged, was a direct copy of an original artwork by Bancroft, Eternal Eclipse (1998), which had been reproduced in Jennifer Isaac's book Aboriginality: Contemporary Aboriginal Paintings and Prints.

The clothing manufacturer and retailers claimed that they were innocent of the infringement and the fault lay with the fabric maker who printed the design. The case raised a number of interesting issues in copyright, especially in relation to Aboriginal art.

Copyright law, in its present form, functions best to protect the individual artist from the unauthorised use of his or her work. For artists to have their work pirated represents a theft of their intellectual property and a distortion of the intent of the artwork. Although, in Bancroft's case, it may be difficult to prove who was directly responsible for appropriating the image, the design used by Dolina is a copy of Bancroft's painting. The artist has suffered the shock and embarrassment of seeing her original artwork trivialised. Bancroft also has an established reputation as a fashion designer of original garments, at a different level of the fashion market from Dolina's styles for major retail outlets. (Cochrane Simons, 1991)

The Label of Authenticity
Bronwyn Bancroft's case is one of the cases that motivated the development of the Label of Authenticity. The National Indigenous Arts Advocacy Association (NIAAA)

…through funding from the Australia Council and ATSIC, are in the process of developing a national system of labelling that will distinguish art and cultural products from the fake products. As a certified trade mark the Label of Authenticity will be attached to a product or used in relation to a service originating from an Aboriginal or Torres Strait Islander person. (NIAAA)

Why do we need a Label of Authenticity
For some time concern has been growing that Aboriginal and Torres Strait Islander designs and symbols have been incorrectly used, most often without permission. Examples include artwork, tourist souvenirs and carpets, to name a few.

The primary responsibilities of the NIAAA as the national peak Aboriginal and Torres Strait Islander arts and cultural service include the continued and increased recognition and protection of the rights of Aboriginal and Torres Strait Islander artists. NIAAA provides culturally appropriate advice, information, referrals and support services to indigenous artists and organisations. (NIAAA, 1999)

Label of Authenticity. Courtesy: National Indigenous Arts Advocacy Association (NIAAA)

NIAAA logo. Courtesy: National Indigenous Arts Advocacy Association (NIAAA)

Copyright guidelines
The following questions developed by the NIAAA are suggested as a guide to artists when they are asked about using their work.

  • Which artwork or design of mine do you wish to use? Description of work? Where was the work sighted?
  • In what form(s) will my design or artwork be reproduced?
    T-shirts, postcards, graphics, etc.
  • What is the purpose of the reproduction? Commercial, private or educational?
  • How long do you want the license to be for? 1 year, 5 years etc.
  • What remuneration would I and/or my community get? For example, a royalty or a flat fee?
  • When and how would such payment be made?
  • Are you aware of the cultural or religious significance of my work?
  • Do you undertake to use my work in a way which will not prejudice my honour or reputation (integrity) or that of my community?
  • Where will the reproductions of my work be made? Australia or overseas? (NIAAA, 1996: 1)

    To find out more about the Label of Authenticity visit: http://www.niaaa.com.au/label.html

Copyright detectives
To see just how extensive the problem of Aboriginal art exploitation is, you can explore a CD-ROM, The House of Aboriginality. The aim of the CD-ROM is to get people to look at Aboriginal designs more closely, and ask are they authentic or imitations?

The CD-ROM features:

  • an image bank
  • a media file of news clippings
  • Federal Court judgements
  • video clips of Aboriginal artists.
    (The Koori Mail, 1998: 3)

House of Aboriginality CD-ROM (Mac and PC) A$55.00 (plus $7.95 postage and handling within Australia). The House of Aboriginality project team has also produced a Copyright Detective's Kit. For A$75.00 (plus $7.95 postage and handling within Australia) you will receive The House of Aboriginality CD-ROM, 60 page full colour Copyrites national touring exhibition catalogue, and official House of Aboriginality Training Manual. Ideal educational aid for all levels, from primary to tertiary, leading students into the world of Aboriginal art via the issues of copyright infringement and cultural integrity. CD-ROM and Copyright Detective's Kit available from: http://www.mq.edu.au/house_of_aboriginality/cdrom.htm

More on ownership and copyright
For further information on ownership and copyright check:

Copyrites, an SBS documentary on the issue of copyright and Aboriginal motifs. Product code: SBCOP. Available for $80.00 from Marcom Projects. Phone (07) 3801 5600 Fax (07) 3801 5622. Email: marcom@marcom.com.au

Adams, Phillip, Shame of the White Man

Sugden, P. (2001) Ownership: Style and the Law, Textile Fibre Forum, No 62, p. 49.
Sugden, P. (2001) Plagiarism techniques and processes, Textile Fibre Forum, No 61.
Sugden, P. (1996) Trade marks and textiles, What's in a mark?, Textile Fibre Forum, No 47.

To find out more about Textile Fibre Forum visit: www.ggcreations.com.au/tafta/.

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