McCausland, Sally --- "Adelaide Art Dealer Charged over Clifford Possum Paintings" [1999] IndigLawB 83; (1999) 4(24) Indigenous Law Bulletin 19
Adelaide Art.Dealer Charged over Clifford Possum
Paintings
By Sally McCausland
Another chapter in the controversy surrounding indigenous artist Clifford
Possum Tjapaltjarri has unfolded in the courts. In the most
recent and dramatic
development, newspapers report that Adelaide art dealer John O'Loughlin has been
charged under the New South
Wales Crimes Act 1900 with several counts of
obtaining a benefit by deception. The charges reportedly stem from a police
investigation code-named 'Operation
Normandie' instituted after Mr Tjapaltjarri
visited Sydney earlier this year to view several paintings mistakenly attributed
to him.
Mr Tjapaltjarri has been in the news frequently over past months. In addition
to his paintings earning the dubious tide of ‘most
faked in
Australia’,1 he has also been caught up in controversy over
competing indigenous and Western concepts of authorship.2 There have
been claims that Mr Tjapaltjarri may have signed paintings which were worked on
or completed by others.3 Although collaborative art practices like
these are not necessarily problematic in traditional Aboriginal culture, they
have stirred
up heated debate within the white art world, and led to the
question of whether such practices affect the ‘authenticiy’
of
indigenous works. In some circumstances, collaborations and
paintings-under-direction are culturally acceptable in both indigenous
and
Western traditions. In others, it is claimed that buyers may believe they have
been misled as to the origins of the painting.4
The case against Mr O'Loughlin is notable as a rare criminal prosecution in
art circles5 although controversies over art forgery are not uncommon
in Australia,6 and unfortunately, indigenous artists are frequently
caught up in them.7 Indigenous artists are also highly susceptible to
‘bottom end’ tourist market fakes.8 Australias tourist
industry depends strongly on indigenous culture to promote Australia as a unique
destination, and there is money
to be made from souvenirs bearing indigenous
imagery. However, many of these are cheap ‘rip-offs’. In response,
indigenous
artists have waged an ongoing war to ‘stop the rip-offs’
of their culture on t-shirts, tea-towels and other souvenirs.
At times, they
have been able to bring copyright infringement actions where specific works have
been reproduced illegally.9 Now efforts are being directed towards
stopping the appropriation of cultural symbols, rock art and styles of painting
not covered
by existing legislation. One proposed line of attack is the soon to
be released National Indigenous Artists Advocacy Association's
Label of
Authenticity.10 The Label will help encourage tourists to select
authentic indigenous works over fakes through a label of origin similar to the
wool
industry's Woolmark. The recently released report on the protection of
indigenous cultural and intellectual property (Our Culture:Our
Future)11 suggests other legal avenues for addressing these
issues.12
Authenticity disputes do not always end up in the criminal courts. Criminal
actions are only effective where the evidence meets the
high standard of proof
required from the prosecution. If the police refuse to prosecute, or it is too
difficult to prove criminal
conduct, an artist or buyer can consider bringing a
civil action. The advantages of using the civil courts are that the buyer or
artist can bring the action themselves, the onus of proof is not as high and
remedies such as damages can be awarded. However, unlike
in a criminal action,
they must finance the action themselves and risk an order to pay the defendants'
costs if they lose. In the
past, civil actions have included breach of section
52(1) of the Trade Practices Act 1974 (Cth) which prohibits misleading
and deceptive conduct in the course of trade;13 breach of contractual
warranty and breach of state and territory Sale of Goods
legislation.14
Unfortunately, rumours and allegations over the authenticity of paintings can
rebound on buyer confidence in indigenous artists whose
works are called into
question. The art market plays an important economic role for many Aboriginal
people, especially in remote
areas such as Central Australia where Aboriginal
unemployment rates are even higher than the rest of Australia. Fakes can be hard
to detect; some of the alleged wrongly attributed Clifford Possum paintings
reportedly hung in unsuspected in prestigious galleries.
Many Aboriginal artists
live far away from the galleries where their works are displayed and do not have
the opportunity to identify
possible fakes; Clifford Possum Tjapaltjarri had to
fly from Alice Springs to Sydney to see the disputed paintings earlier this
year.
The O'Loughlin case is next listed for timetable directions on 13 November
1999.
Sally McCausland is a Legal Officer at the Arts Law Centre in
Sydney.
Endnotes
1. | Dealer Hank Ebes of Aboriginal
Gallery of Dreamings, quoted in S McCulloch-Uehlin,'The Hand that Signed the
Paper' The Weekend Australian
Review, 24-25 April 1999. |
2. | See eg S McCulloch-Uehlins,
ibid; Chris Ryan, 'Storm in the Desert' The Sydney Morning Herald 18 November
1997, 17; S McCulloch-Uehlin,'Painter
Tells of Secret Women's Business: I Signed
My Relative's Work' The Weekend Australian, 17-18 April 1999, 1; S
McCulloch-Uehlin, 'Dealers
Trade on Grey Areas in Red Centre Art' The Weekend
Australian, 17-18 April 1999, 4. |
3. | S McCulloch-Uehlins, above,
'Painter Tells of Secret Women's Business...' at 25; 'Dots for Dollars, Four
Corners, Australian Broadcasting
Commission television programme, 31 May
1999. |
4. | See eg S McCulloch-Uehlins,
above n 2, 'Painter Tells of Secret Women's Business..: in relation to the
return of a painting to an
auction house. |
5. | See l Krygier, Art Forgery and
Criminal Law (September 1994) Art Monthly Australia 32. |
6. | See eg J Rewald, 'Modern Fakes
of Modern Pictures' (1953) 52 Art News 17; D Grant, 'High Prices Lead to More
Fakes in Art Marker'
(June 1981) Arnoorkers News l; C Ashton, 'So You Think Your
Pro Hart is Genuine, The National Times, 14-20 October 1983, 31; P Smith,
'The
Crude Fake that Passed as Passmore The Sydney Morning Herald 27 June 1987, 48; D
Mars, 'Changing the Label' The National Times,
August 3-9, 1984, 16; S de
Vries-Evans, 'The Art of Faking It' The Sydney Morning Herald, 27 March 1993; S
Owens, 'What a Bummer:
An Authentic Fake' The Sun-Herald 8 May 1994, 150; T
Ingram, 'Whiteley Drawings are Branded Fakes' Financial Review, 29 April 1994,
2; B Hills, 'A Brush With Fame The Sydney Morning Hera/d 18 July 1998, 3; J
Morgan, 'Painting's Authenticity Questioned' The Sydney
Morning Herald 6 October
1999, 6. |
7. | A notorious example is the
1992 controversy involving The Killing ofLuma Luma, reputed to have been painted
by Bobby Nganjimirra of
Gumbalanya in Western Arnhem Land. The then Victorian
Premier, Joan Kirner, had purchased it under the Premiers Acquisition Fund
before anyone queried its authenticity. The dealer in that case denied any
wrongdoing. See eg E Hannan, 'Dealer denies Aboriginal
Artwork a Forgery', The
Australian, 11 June 1992, 3; L' Lamont and G Ryle, 'Police to Investigate Fake
Paintings Claim The Age, 11
June 1992, 1; G Ryle, 'Melbourne Dealer to Take
Action Against His Critics' The Age, 11 June 1992, 6. |
8. | See A Harvey, 'Black Artists
Fear the Black Art of Forgery' The Sydney Morning Herald 19 September 1995,
3. |
9. | See
eg,Milpurrurruvlndofurn(1995)30IPR209;BulunBulun R&T Textiles (1998) 41
IPR513; see generally M Hardie, 'The Bulun Bulun case'
(1998) 4(16) ILB 24; V
Johnson, Copyrites: Aboriginal Art in the Age of Reproductive Technologies
(Touring Exhibition Catalogue)
(1996); I McDonald, Protecting Indigenous
Intellectual Property (1998); T Janke, Our Culture: Our Future: Report on
Australian Indigenous
Cultural and Intellectual Property Rights (1998): now
available at
<www.icip.lawnet.com.au>. |
12. | Our Culture, Our Future's
recommendations include enactment of specific legislation and development of
codes of ethics. |
13. | See eg Saint Gallery Pry
Limited v Plummer (1988) 80 ALR 525; commented on by S Simpson, 'Fakes,
Forgeries and Fees: the Authentication
of Fine Art' (1988) 62 Alernative Law
Journal 796. |
14. | For discussion of cases and
principles concerning the related areas of breach of contractual warranty and
breach of Sale of Goods
legislation, see eg LA Lawrenson, 'The Sale of Goods By
Description-A Return to Caveat Emptor?' (1991) 54 Modern Law Review 17; G Waite,
'Art Forgeries' (September 1992) Museum National 5; J Krygier above n
5. |