The term “fake art” is not enough. Australia must recognize and protect First Nations cultural and intellectual property – The Conversation | Candle Made Easy

The latest draft report from the Productivity Commission on Aboriginal and Torres Strait Islander Visual Arts and Crafts confirms what First Nations artists have known for decades: Counterfeit art is damaging to culture.

The report released last week details how two out of three Indigenous-style products, souvenirs or digital images sold in Australia are counterfeit, with no connection to – or benefit to – Aboriginal and Torres Strait Islander people.

This is a long-standing problem. As Aboriginal elder Gawirrin Gumana (Yolngu) explained in 1996:

If that [white] Man do that, it’s like cutting off our skin.

The Productivity Commission has proposed that all inauthentic Indigenous artworks be labeled as such. But we think a much bolder conversation needs to be had about protecting the cultural and intellectual property of Indigenous artists.

Australia has no national licensing or production policies to protect Indigenous cultural and intellectual property in commercial design and digital spaces. Our work hopes to see this change.

Read more: Indigenous cultural appropriation: what not to do

“This is storytelling”

Our research focuses on supporting and representing First Nations artists in design and commercial spaces to understand how to ensure cultural security and fair pay and combat exploitation.

Many First Nations artists we spoke to shared stories about exploitative business models. They were blindly led into licensing deals and client relationships that weren’t culturally safe. Clients thought that commissioning a design was tantamount to “owning” the copyright in First Nations art, culture and knowledge.

Ryhia Dank, Gudanji/Wakaja artist and winner of the 2022 NAIDOC Poster Competition, told us:

We need clear recognition, structure and licensing policies to protect all that First Nations “art” represents. I know many of us because at first we don’t know how to license our work […]

One of my first designs was for a fabric company and I didn’t license the design properly so that company still uses my design and I only charged them $350 once and that was it. Having legal support from the start is crucial.

The 2022 NAIDOC national poster featuring the Aboriginal and Torres Strait Islander flag (licensed by Torres Strait Island Council).

Arrernte and Anmatyerre graphic novelist Declan Miller explained how many customers and companies are misguided in believing that commissioning a design equates to owning the copyright to First Nations knowledge.

“Our art is not just art,” he said.

Customers need to be aware that this is storytelling. This is culture. We will always own that. But we’re happy for clients to work with us, use our art and pay us for it, but we have to maintain that integrity. This is our story, this is where we came from, this is who we are and you can’t buy or take that from us.

protect property

Transparently labeling inauthentic art is a good start, but more work is needed.

Intellectual property laws and practices should adequately protect First Nations art.

“Indigenous cultural and intellectual property” refers to the rights that First Nations people have – and want – to protect their traditional arts, heritage and culture.

This can include communal cultural practices, traditional knowledge and resources, and systems of knowledge developed by indigenous people as part of their indigenous identity.

First Nations products should be supplied by a First Nations company that protects Indigenous cultural and intellectual property, with direct benefits to First Nations communities.

The results of our research have led to the recent creation of Solid Lines – Australia’s only Aboriginal-run illustration agency. An integral part of this agency is the Indigenous Cultural and Intellectual Property Policy, developed specifically for the design and commercial arts industries.

The launch of Solid Lines, Australia’s only Aboriginal-run illustration agency.
Jacob Heinrich, Author provided (no reuse)

The agency hopes this policy, created by the Marrawah Act, will help create and support culturally safe and supportive avenues for First Nations creators.

For First Nations artists represented by Solid Lines, our policy also means obtaining culturally appropriate permission to use family or community histories, as well as community-owned knowledge and symbols.

Read more: How Indigenous fashion designers are taking control and challenging the notion of the heroic, lonely genius

recognition and protection

The Productivity Commission’s report focuses on overseas counterfeit art, but counterfeit art also originates in our own backyard.

In our research, we spoke to elders, traditional guardians and community leaders who are concerned that Western and Central Desert designs, symbols and iconography are now being used by other First Nations people across Australia.

This work often undermines customary rights and limits the economic benefits that flow back to communities.

Community designs, symbols, and iconography are part of a cultural connection to a particular country or Native American country. Adopting indigenous policies on culture and intellectual property means that designs, symbols and iconography can only be used by the communities to which they belong.

The Productivity Commission calculated the value of authentic Aboriginal and Torres Strait Islander arts, crafts and designs sold in Australia between 2019 and 2020 at A$250 million. This will only continue to grow as Australia’s design and retail industries continue to draw on the world’s oldest surviving culture.

Visible recognition and protection of First Nations cultural and intellectual property will allow new creative voices to thrive respectfully and safely within the Australian arts and design industry.

Adopting Indigenous cultural and intellectual property policies assists First Nations artists with cultural security, fair pay and combating exploitation. This is the next step in tagging inauthentic art.

Read more: Friday Essay: How the Men’s Painting Room in Papunya changed Australian art

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