Alternative Law Journal
The most recent controversy in the world of Aboriginal art, focusing on leading Pintupi artist Turkey Tolson Tjupurrurla raises a number of issues about the future of Aboriginal art. Claims were made in the Weekend Australian (17–18 April 1999) that many works attributed to Tjupurrurla were in fact being painted by his women relatives and later signed by the artist, who is a big ‘name’ in the business. Whether or not these allegations are true, there exists a mismatch between the concept of ‘authorship’ in the traditionally oriented Centralian Indigenous context and what is recognised as ‘authorship’ by Australia’s dominant legal system.
What this case, and others like it — including the highly-publicised Kathleen Petyarre affair of 1997–1998 — highlight is the urgent need for law reform which would enable Aboriginal art to continue to be created within its own cultural terms, not those imposed by the dominant, white culture.
That this continues to be the case was affirmed only last year in the Federal Court of Australia, in a case heard in Darwin by Justice Von Doussa (George Milpurrurru v R & T Textiles Pty Ltd & Minister for Aboriginal and Torres Strait Islander Affairs and Another, 3 September 1998). The late Mr George Milpurrurru of the Ganalbingu people of the Northern Territory was unsuccessful in advancing a claim that the importation and sale in Australia of printed clothing fabric had infringed communal (that is not just individual) copyright held over Johnny Bulun Bulun’s ‘Magpie Geese and Water Lilies at the Waterhole’. Acting in a representative capacity for the Ganalbingu people, Milpurrurru claimed that the traditional Aboriginal owners of Ganalbingu country were the equitable owners of the copyright in this artistic work. This assertion was rejected by the court on the basis that communal ownership is not a concept recognised by the Copyright Act 1968 (Cth). While the Act does recognise joint ownership, it contemplates that joint ‘authors’ of an art work may become joint ‘owners’ of the copyright in the work only if the ‘authors’ in question are responsible for putting the work into material form, that is, only if they physically create the work. In traditional Aboriginal society this is not necessarily the case.
This issue has been raised again by the Turkey Tolson Tjupurrurla business, as it was in the Kathleen Petyarre affair. It seems to be in danger of becoming a repeated motif in terms of cross-cultural misunderstanding. One of the reasons, it appears, that non-Indigenous people tend to criticise Indigenous people who work cooperatively, but don’t all sign the work (although historically, apparently, we had no problem with the ‘Old Masters’ who also worked collaboratively, albeit hierarchically), is that we no longer have a cultural notion of communal copyright. Indeed, it seems that we almost ‘instinctively’ baulk at the concept of communal ownership of copyright. Buyers and viewers expect the name they see on the art work to be the name of the person who actually created the piece, solo. We tend to look for the ‘special message’ that only that particular artist is able convey, and are disappointed, angry, or may even feel duped, if that turns out not to be the case. This is bound up with entrenched western notions of the individual artist-as-genius. But such individual production is never how it works in traditionally oriented Indigenous Australian ‘art’.
Under Centralian and Western Desert Indigenous law (not lore) the owner or ‘boss’ of a Dreaming (‘kirta’ or ‘yarriki’ or ‘wapirra’ in Tjupurrurla’s language, Pintupi), has a perfect right to ‘subcontract’ the actual painting of an artistic work to the co-owners of the Dreaming (‘kurtungurlu’ in Pintupi, sometimes translated into English as ‘workers’, ‘guardians’, ‘managers’ or even ‘policemen’, but to sign it as his (or hers, as the case may be). The semantic scope of the English word ‘owner’ is in fact considerably more limited than the Indigenous concepts of ownership of both land and intellectual copyright, conveyed by the terms ‘kirta’ and ‘kurtungurlu’. Underlying these terms is a principle of complementarity. Traditional Centralian and Western Desert Indigenous Law (not lore) stipulates that all ownership of Dreamings and therefore authorship of artistic works is by definition based on a principle of complementarity and is therefore vested in a group rather than an individual. This operates a little like the ‘yin’ and ‘yang’ which are the two fundamental principles of the universe in traditional Chinese philosophy. In effect this means that two complementary groups of people have proprietal rights over every Dreaming and by extension over every painting of that Dreaming. Ownership is never an individual matter, as it is in the dominant culture, but always subsists in these two groups. Furthermore, there is no requirement for these ‘owners’ to have physically worked on the creation of the work, in order to assert ownership over the work, so long as they retain control over the process. This complex form of communal ownership of Dreamings, and therefore ownership of specific tracts of land, and the paintings associated with that land, is not to be confused with the faking of art works, which is forbidden in both traditional Indigenous culture and the dominant culture.
Tjupurrurla is ‘kirta’ (usually glossed in English as ‘owner’) for his famous ‘Straightening Spears’ Dreaming. Tjupurrurla has in no way infringed Pintupi copyright law by authorising his ‘kurtungurlu’ (maternally derived co-owners of the Dreaming) to apply some or all of the paint to ‘his’ Dreaming, so long as he oversees the process with due regard for Indigenous legal process. It should also be noted that women too can be kirta for ‘their’ Dreamings, or Tjukurrpa, and men, kurtungurlu.
A problem only arises when it comes to the actual signing of the work. Under the Copyright Act it is virtually impossible at present to assert communal ownership. This represents something of a double bind for traditionally oriented Indigenous artists whose understanding of what constitutes copyright is considerably at variance with the one which predominates in this country.
As has been noted, at present, the dominant culture’s star system centres on the idea of the individual ‘artist-as- celebrity/ superstar/genius’ (cf Brett Whitely, inter alia). This exerts a good deal of hidden, but nevertheless, intense, assimilatory pressure on Aboriginal artists to conform to its strictures, thereby militating against groups consisting of perhaps 20 or so people claiming communal copyright over an individual work, as may well be the case.
While in the Milpurrurru case of last year Justice Von Doussa rejected any such notion of communal copyright, he did, however, accept another argument, which may, at least indirectly, allow Indigenous communities to assert some control over copyright which, as has been explained under the 1968 Act, tends to be vested in individual or a group of ‘authors’ who have actually physically contributed to the making of the art work.
His Honour Justice Von Doussa found that Mr Bulun Bulun held the copyright as a fiduciary for Milpurrurru and his people. A fiduciary, by reason of the special trust placed in that person, is required to act in the best interests of another, whether that other is a person, group or organisation. Fiduciary relations exist, for example, between a doctor and patient, a solicitor and client, or a director and a company. Could it be extended to this situation between the applicants? The answer was yes.
Justice Von Doussa said:
The law and customs of the Ganalbingu people require that the use of ritual knowledge and the artistic work be in accordance with the requirements of law and custom, and that the author of the artistic work do whatever is necessary to prevent any misuse. The artist is required to act in relation to the artwork in the interests of the Ganalbingu people to preserve the integrity of their culture, and ritual knowledge.
This leaves us with some questions which await resolution. In a recent article, Macquarie University economist David Langsam wrote that in terms of the return to Australia’s economy there is sufficient evidence to conclude that Aboriginal visual art now probably outstrips non-Aboriginal art in Australia — not just on a per capita basis but in terms of absolute income generated and the number of artists working. Langsam goes on to state that Aboriginal artists make up at least 25% and probably up to 50% of working visual artists in Australia. As well, they contribute more than half the total value of Australian visual art sales and they dominate the export market. In addition, Indigenous Australian art has increased the self-esteem of its practitioners and has become a kind of national symbol for all Australians.
The total value to the Australian economy of all Aboriginal arts and crafts (not including imitations) is said to be at least $100 million a year, probably closer to $200 million a year. In terms of the Australian economy and national identity and pride, Indigenous visual art, which is largely produced in remote, rural, regional locations, has become important for all Australians.
Now that Aboriginal art has taken off exponentially, and has become so important both in Australia and globally, both symbolically and economically, and our export dollar has become dependent on it, perhaps it is time to examine the ethnocentrism inherent in our copyright laws, and time to get on with further law reform. Using the notion of a ‘fiduciary relationship’ may be a temporary and useful stopgap measure to address, or rather, to circumvent or work around, the cultural specificity of the Copyright Act 1968, but the mismatch between the ‘two laws’ is too great. Ultimately a far better option would be to create a new, different legislative framework which has the capacity to reflect Indigenous ‘ways of owning’ and differing concepts of authorship. As prominent law professors Andrew Stewart and Jill McKeough have noted:
… [If Indigenous] spiritual and cultural interests … are to be appropriately accommodated, a different legislative framework altogether would seem to be needed.
If this does not happen, the entire — and lucrative — Aboriginal art industry could also become dangerously destabilised by future allegations of this nature.
This is an extended version of a short article that first appeared in the Adelaide Advertiser, 1 May 1999.
The author would like to thank both Professor Michael Chesterman of the Law Department, University of NSW, and Professor Andrew Stewart, of the Law Department of Flinders University of South Australia, for reading earlier drafts of this article and for their contributions to her understanding of the Copyright Act 1968.
[*] Christine Nicholls teaches Australian Studies at Flinders University in South Australia, where she also teaches courses on Indigenous Australian art and languages.
 Langsam, David, ‘Aboriginal Art: Australia’s Hidden Resource’, (1996) Art Monthly Australia, Canberra, pp.4-5.
 McKeough, Jill and Andrew Stewart, ‘Intellectual Property and the Dreaming’, in Elliott Johnston, Martin Hinton and Darryle Rigney (eds), Indigenous Australians and the Law, Cavendish Publishing (Australia) Pty Ltd, 1997, pp.53–79.