Non-Indigenous Artists Producing Indigenous Art – the Wandjina Sculpture Scandal

July 29, 2010

By Karen Abidi

The Wandjinas belonged to people long before our time. They created our laws.  We still have to obey these laws… In the old days, only very special men could paint the Wandjina but now we are the only ones left to paint him to keep his spirit alive…”. Donny Woolagoodja, Traditional Custodian of Wandjina spirits*

Earlier this year, Vesna Tenodi (a non-Indigenous gallery owner) commissioned a 2 metre 8.5 tonne sculpture which she installed outside her Blue Mountain’s art centre.  (Click here for images)  Tenodi had asked Sydney artist Ben Osvath to create the sculpture using Indigenous Wandjina imagery.  However, local Indigenous groups protested on the grounds that under Indigenous customary law only Indigenous people are allowed to create Wandjinas and, even so, depicting a Wandjina is a right earned after years of initiation.  The commission and erection of the sculpture caused huge controversy and was vandalised with an axe the day before it’s unveiling.

The situation highlights the issue of protection of Indigenous intellectual property under Australian law. How should the law balance an individual’s freedom of artistic expression with Indigenous people’s collective right to their sacred imagery?

In this case, Wandjina are known to be sacred to the Wowara, Ngarinyin and Wunumbul people of the Kimberly as ancient and supreme spirit ancestors. Wandjina imagery is well known.  It is depicted in ancient rock art and contemporary Indigenous paintings, and featured in the opening ceremony for the Sydney Olympic Games.  Wandjina are anthropomorphic forms, their faces having eyes and a nose but no mouth, with an arc around their heads that looks like a headdress or helmet.

In 2007 a Senate Inquiry recommended the introduction of law to protect Indigenous Cultural and Intellectual Property Rights.  The Government rejected this recommendation.

Indigenous Cultural and Intellectual Property Rights are the rights of indigenous people to own, control and manage their cultural and intellectual property, to be the custodians and interpreters of their culture, and to authorise (or not) the use of their imagery and iconography according to their customary law.

Vesna Tenodi has described the intention of the sculpture as to recognise, celebrate and “reinterpret” Indigenous spirituality.  She feels spiritually connected to the Wandjina and sees herself as having a right, and even spiritual permission and direction, to use the imagery.  She said recently on ABC’s The Law Report that artists should have the right to “explore and express the divine” and queries how anyone can “claim ownership over god, and wandjina are gods.”  Her view is that “any artist has the right to be inspired and influenced by any imagery and any idea they find important and can resonate with”.

On the other hand, her use of the Wandjina has been met with strong criticism from the Indigenous community, who say that non-indigenous people should not use this sacred imagery without permission from the traditional owners.  A Kimberly traditional elder, Donny Woolagoodja, said on The Law Report that it is wrong of Vesna Tenodi to use the Wandjina- “… it’s not her Dreaming.  It belongs to us.”

A few years ago, Wandjina graffiti art in Perth created similar controversy and raised similar issues as to who has the right to represent the Wandjina in their art.

Western and indigenous notions of intellectual property are very different. Existing intellectual property legislation is not a good fit to accommodate Indigenous cultural and intellectual property.  The Senate Inquiry recommended that it be protected by way of specific tailored legislation, rather than amending existing IP statutes such as the Copyright Act.

The basis for Western intellectual property rights is economic, whereas for indigenous cultural and intellectual property rights it is cultural.  Australian copyright law does not protect artistic style or a genre of imagery. Whilst it prevents the direct copying of a particular Indigenous artwork, it does not prevent the general use of sacred Indigenous imagery.  In contrast, Indigenous customs recognise rights to particular indigenous images and styles.  Also, while Western intellectual property law protects individual rights, and these rights are transferable, under Indigenous customary law imagery is owned collectively and transmission is qualified.

At the International level, Australia has endorsed Article 31 of the Declaration on the Rights of Indigenous Peoples, which provides that indigenous people have the right to maintain, protect and develop their cultural heritage and cultural expression, as well as the manifestations of their visual arts.

Also, Australia is a participant in the World Intellectual Property Organisation’s (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, which is in the process of negotiating an international legal instrument that includes that protection of traditional cultural expressions.

The Senate Inquiry recognised the importance of Australian Indigenous art, both economically and culturally and spiritually – “Indigenous artists express their culture, identity and connection to the land and their community through their art.”  Australian law should protect Indigenous culture and art.  Even if our law doesn’t offer protection, it is appropriate for non-indigenous Australians to seek permission to use sacred indigenous images.  Art using Indigenous imagery should be made and exhibited with sensitivity and respect.

*  The Wandjina Spirit from Rock to Wall by Glen Pilkington 2006 (click here)

Karen Abidi is a lawyer, and a tutor at Monash University

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Law Destroys Fake Art

June 17, 2010

By Karen Abidi, lawyer

Art forgery is a radical misrepresentation of an artist’s work, said Justice Vickery of the Victorian Supreme Court earlier this month, in Charles Blackman and Ors v Peter Gant and Anor [2010] VSC 229.  He ordered the destruction of fake art purporting to be by the renowned Australian artists Robert Dickerson and Charles Blackman.

Fake art is said to represent 10 per cent of the Australian art market. It damages the artists’ reputations and the market for their genuine works.  It also harms art buyers and the broader art industry, as the circulation of fakes creates uncertainty and lack of confidence in the art market. 

The artworks in this case were two drawings falsely attributed to Blackman, called “Street Scene with a Schoolgirl” and “Three Schoolgirls”, and one drawing falsely attributed to Dickerson, called “Pensive Woman”.  Click here for images.  They were not copies of the artists’ actual works, and therefore there was no issue of copyright infringement. They were drawn in the style of these artists, with false signatures.  The judge stated that they were deliberately contrived to mislead the unsuspecting public.

The artists were the plaintiffs in the case.  When the buyer of the fakes, an inexperienced art purchaser, found out that the drawings were forgeries, he returned them and received a refund.  He suffered no loss and was not a party to the legal proceedings.  The defendant was Peter Gant, a Carlton gallery owner, who gave valuations of the three drawings (of amounts reflecting that they were genuine) and was the seller of one of them.

Dickerson, now elderly, gave evidence at the trial that he did not draw Pensive Woman.  He said he felt “a bit sick” when he first saw the work, and described it as “very bad work” and “bloody awful”.  Blackman was unfit to give evidence at the trial, as he is afflicted by a form of brain damage that affects short-term memory.  Expert evidence was given that the schoolgirl drawings were un-Blackman like and poorly drawn.  The judge was left in no doubt that the art works were “fakes masquerading as the genuine article”.

The judge stated that a valuation not only gives a market value for the art, it also certifies its authenticity.  A valuation is a representation that the art is by the particular artist.  The giving of the valuations, and the sale of one of the drawings, was held to constitute misleading and deceptive conduct by Mr Gant in trade or commerce, in breach of section 9 of the Fair Trading Act (Vic) 1999.  The judge ordered that the drawings be delivered to the artists for destruction.  Robert Dickerson said that he would rip up the fake with his bare hands.

The judge made no finding that Mr Gant knew the drawings were forgeries or that he acted other than innocently.  A person may engage in misleading and deceptive conduct in breach of the Fair Trading Act even if they act honestly and reasonably.

Following this decision, art dealers, galleries and auction houses that sell and value art will need to be confident of the authenticity of the art they are dealing with.  There can be no “turning a blind eye” to art of questionable provenance.  Since this court case, a Whitely said to be fake was withdrawn from auction in Melbourne, and another Whitely and a Dickerson of questionable provenance have been reported.  This decision gives artists legal ground on which to seek to prevent trade in their fake art, and fosters certainty and confidence in the Australian art market.


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