AustLII Home | Databases | WorldLII | Search | Feedback

Indigenous Law Bulletin

Indigenous Law Bulletin
You are here:  AustLII >> Databases >> Indigenous Law Bulletin >> 2006 >> [2006] IndigLawB 18

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

James, Trevor --- "Supporting Indigenous Artists: Finding a Way Forward" [2006] IndigLawB 18; (2006) 6(18) Indigenous Law Bulletin 6

Supporting Indigenous Artists: Finding a Way Forward

by Trevor James and Viscopy

Since 1995, Viscopy (Australasia’s visual arts copyright collecting agency) has provided a bridge between market outcomes (ie sales of artworks) and artist incomes. ‘Viscopy’s mission is to protect and advance the interests of visual artists, both domestic and international, through its Australian organisation and those of its affiliates overseas, by licensing the works of artists, representing their copyright, moral and other related rights.’[1]

After extensive consultation with Indigenous artists throughout Australia, it is the view of Viscopy that a scheme of resale royalty on visual art would be welcomed. The consensus from our discussions within Indigenous communities is that there is widespread exploitation of artists and their culture by those who see these works solely as a form of financial incentive. Little rewards are going to artists or their communities. This form of exploitation appears unique only to Indigenous artists as there are no reports of non-Indigenous artists being subjected to this form of treatment on such a large scale.

Indigenous communities are constantly targeted by elements, either acting alone or associated with some private galleries, to produce artworks under conditions which are not documented and are therefore not subject to any form of workplace relations legislation or protection. Some galleries have artists create artwork at their business premises or at houses – environments some deem to be ‘sweatshops’ – for very little financial reward. These works are then on-sold at a much higher rate than the original purchase price. These operators have been known to target Indigenous youth and women in rural communities, with payments being made through various means.

We have received widespread reports of artworks being purchased from artists for small amounts of cash, food, alcohol and clothing. A more disturbing trend also identified by Indigenous community members sees some art traders or their associates purchasing Indigenous art in return for hiring the services of prostitutes for the artist, or by giving younger artists illegal drugs as a form of payment. Some people would say that this is an exaggeration but it is occurring in remote areas of the country. It is the isolation of many of these communities that allows for much of this to occur, and to remain unseen.

It is common knowledge that most of the pieces of artwork purchased through these means are usually resold at a high rate, with nothing going back to the artist. These modes of practice are not recorded or monitored, and it is very likely that there are breaches of various commonwealth, state and territory legislation occurring.

Those who argue against the introduction of a resale royalty scheme often attempt to portray their work as one of respect for Indigenous culture and art and are aware that such a scheme would expose practices that have been condoned or ignored by some involved in the industry. There are, however, many people and organisations in this industry whose actions are legitimate and who do genuinely want to protect Indigenous artists from these practices, however it is the lack of a formal industry code of conduct that is seriously failing artists and much scepticism exists in the Indigenous community as to the full intention of some auction houses and galleries.

It is the view of Viscopy that the introduction of a resale royalty scheme would assist in stamping out these practices. At the moment there is no form of documentation, nor records of transaction for artworks purchased when they are bought under these circumstances. We do not believe that resale royalties can alleviate all forms of social disadvantage in the community and we would be naïve to believe so, but we believe it would give Indigenous artists proper financial recognition for their works; a concept which has been in existence for musicians for decades. It is abysmal that an artist’s work, initially purchased by dubious means, can end up being sold for thousands of dollars by a gallery, with no return to the artist or their community.

A resale royalty scheme would mean that anyone engaged in these activities would need to provide some form of documentary evidence of the means of payment made to the artist and the amount paid. If the works are resold, then such a scheme would assist the artist if they have been subject to this form of exploitation in the first instance.

A resale royalty scheme would assist with due recognition as well as financial independence for many Indigenous artists who are currently not benefiting from their stories and artworks derived from their culture, laws and customs. The only ones who are taking full advantage of this are those engaged in these practices of exploitation, or those who are attempting to control this lucrative market by gaining control of artists’ estates upon their death. We are aware of artists who are being targeted by certain characters, asking them to sign contracts that stipulate that upon their death, copyright and control of all artworks transfers to this other party. In most circumstances the artists have no understanding of what this means in practice and this is only made worse by their limited knowledge of English.

Indigenous Artists’ Trust Funds

The proposal of a trust fund for Indigenous artists, made by some to counter the calls for a resale royalty scheme, is highly offensive to many artists and raises issues about how these funds are distributed and who controls the trust fund overall. A trust fund does not even address issues for Indigenous artists in urban areas, as these funds only target artists in remote areas. Why is that? Are urban-based Indigenous artists not viewed by these trust fund proponents as worthy?

It is for an Indigenous artist – as it is for any artist – to decide how their monies are to be spent; not an auction house who may not be subject to any adequate form of checks and balances. Furthermore, the provision of health, education, housing and other essential services – espoused by some as their reason for a trust fund – is the responsibility of commonwealth, state and territory governments. Will the auction houses also be setting up a trust fund for non-Indigenous artists, providing these very same services in non-Indigenous communities?

There is a major concern that these trust funds will result in select individual non-Indigenous people getting richer at the expense of the most vulnerable members of the Australian community and could possibly result in another stolen wages scenario.

Fake Importations

Along with incidences of Indigenous artists being paid next-to-nothing for many pieces of their artwork, there is also the problem of fake Indigenous art being imported into Australia from south-east Asia. Some of these artworks are being passed off as genuine Indigenous Australian works and sold to tourists visiting Australia. In some cases certain businesses sell these fake works and use Indigenous artists’ names or photographs to give the impression that the work is ‘locally’ made. Such matters are of grave concern to many Indigenous artists as well as the wider community and would appear to be in breach of the Trade Practices Act 1974 (Cth).


It would appear that some collectors of Indigenous art like to portray themselves as qualified anthropologists who believe that they know what constitutes an Indigenous person. There have been numerous reports of galleries and individuals engaged in the Indigenous art market who perpetrate or condone acts of racism against artists. For example, many Indigenous artists have been told that their works are not of the ‘standard’ of other artists as they are not creating ‘real’ Indigenous art. These artists identify as Indigenous people yet are being told that they are not practicing their ‘true culture’.

An Indigenous person is one who identifies as a person of that racial group and is accepted by others within that community; the level of darkness or fairness of their skin is not an issue. Many of these artists are fair in complexion and so do not meet the stereotype of an Indigenous person. In these situations the artist is being discriminated against on the grounds of their complexion and not the content of their work. Cases have been reported to the Human Rights and Equal Opportunity Commission. As yet there is no definition or clarification as to whether these actions constitute a breach of the Racial Discrimination Act 1975 (Cth).

Viscopy’s Indigenous Program Response

The issue at hand is that there appears to be a lack of coordination between relevant agencies in how to tackle these problems. This is not just an ‘arts’ issue, as some would like the Australian community to believe, but a legal and a social issue that relates to more than simply the Copyright Act 1968 (Cth). Other relevant legislation includes the Crimes Act 1914 (Cth), the Trade Practices Act 1974 (Cth), the Racial Discrimination Act 1975 (Cth), and the Customs Act 1901 (Cth), along with various state and territory laws. It is this apparent lack of enforcement and appropriate concern that is allowing these unscrupulous operators to continue exploiting many Indigenous artists in this country.

The Commonwealth Government has funded the Indigenous Program at Viscopy to conduct educational workshops with Indigenous artists and communities throughout Australia to help address some of these problems. As a result of these workshops many artists are now fully aware of their rights when it comes to the protection of their copyright and know who to approach for assistance when they find their works being used without their permission or are asked to do artwork for particular purposes. Viscopy currently represents 2,900 Indigenous artists Australia-wide.

Although there are some unsavoury examples relating to the exploitation of Indigenous artists, the approach taken by the Commonwealth Government recently in stamping out these practices, including talk of an inquiry, is welcomed.[2] We at Viscopy have been advocating for these issues to be addressed for some time through meetings with the Attorney General, Philip Ruddock, the Minister for the Arts and Sport, Rod Kemp, and senior advisors to the Indigenous Affairs Minister, Mal Brough.

Through ongoing education programs to artists in remote and urban areas, and closer dialogue with other Indigenous arts organistions such as Desart,[3] ANKAAA[4] and UMI Arts[5] and with Commonwealth agencies, these issues can hopefully be addressed and the artists and their communities can enjoy the benefits of their works without fear of ongoing exploitation.

Trevor James is the Indigenous Copyright Education Officer at Viscopy, the Visual Arts Copyright Collecting Agency, and is a senior law student at the University of NSW. Trevor’s family background is Arunta (Central Australia) and Kaurna (South Australia).He is the nephew of Aboriginal police tracker Jimmy James who, in 1983, became the first South Australian Aboriginal of the Year and was awarded an Order of Australia in 1984. Further information on Viscopy can be found by going to <> or calling 02 9368 0933.

[1] Viscopy, Annual Report 2004-2005, (2005) 2.

[2] The Hon Rod Kemp, ‘Exploitation of Indigenous Artists Being Scrutinised’, (Press Release, 4 April 2006).

[3] The Association of Central Australian Aboriginal Art and Craft Centres, <> .

[4] Association of Northern, Kimberley and Arnhem Aboriginal Artists, <> .

[5] UMI Arts is a new organisation, supporting Aboriginal and Torres Strait Islander artists and craftspeople in Far North Queensland.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback