- Worth of art fraud estimated to take place internationally every year .
- Percentage of art in Western Australian communities said to be fake .
Up to 90% of ‘Aboriginal-style’ art might be fake
When you buy Aboriginal art, how can you be sure it is an authentic piece made by Aboriginal people? Often art which is tagged “Aboriginal-style” has been mass-produced by white people or Aboriginal people did not consent to their symbols and patterns being used. Some claim that 90% of what’s labeled “Aboriginal-style” actually wasn’t made by Aboriginal people.
There have been attempts to introduce labels to authenticate Aboriginal art to enable buyers to distinguish between what has been produced by Aboriginal people and what has not.
More recent attempts to protect Aboriginal art added a chemical fingerprint to the painting.
The material they call Aboriginal art is almost exclusively the work of fakers, forgers and fraudsters.—Marion Scrymgour, former NT Arts Minister 
Authentic Aboriginal art?
Be careful when you buy items marked as ‘Authentic Aboriginal Art’. They might not be.
In April 2010 Mayvic Pty Ltd, an Australian household goods wholesaler, had to withdraw fridge magnets featuring Aboriginal rock art after the Australian Competition and Consumer Commission raised concerns about its authenticity .
The company acknowledged that its conduct was likely to have breached the Trade Practices Act 1974. Any product, from expensive fine art works to small souvenir items such as fridge magnets, must come with accurate authenticity claims.
“I started pulling everything off the bloody rack”
In 1991, the clothing manufacturer Dolina Fashion Group Pty Ltd supplied Grace Bros stores with an ‘exclusive’ dress design for a major promotion through its network. It was alleged that Dolina’s stylists had requested an Aboriginal look from the Japanese fabric maker Sastani to present as the front line of their fashion range.
The problem was that the print supplied by the fabric maker was a direct copy of an original work by Aboriginal artist Bronwyn Bancroft, Eternal Eclipse (1998), which had been reproduced illegally. Here’s how Bronwyn recalls the case .
“It’s a funny thing when you’re sitting down with a bunch of other Aboriginal people and you’re having a cup of tea and someone hears the mailman and goes out and gets the little brochure and brings it in. There’s a couple of letters and then there’s the Grace Brothers/Myers catalogue. And so I flicked through that.
And then all of a sudden I see this really revolting outfit with my painting. Eternal Eclipse, on it!
So I raced over to Broadway [shopping centre]… So we actually went over to Grace Brothers and I started pulling everything off the bloody rack. The manager descended and said ‘What are you doing?’ and I went, ‘This is my work, how dare you?’… And I said, ‘I demand to see your Manager. I want to know who supplied this. I demand they be taken out of this shop immediately.’”
Bronwyn’s case was settled out of court and – among others – motivated the development of the National Indigenous Arts Advocacy Association’s (NIAAA) Label of Authenticity.
It was only Aboriginal art. I didn't think I had to ask anybody.—Justification for the copyright infringement, according to Bronwyn Bancroft 
Fact One of the ‘brightest stars’ in Aboriginal art, Sakshi Anmatyerre, whose buyers included the Sultan of Brunei, the Brisbane Broncos, Paul Hogan and the family of media tycoon Kerry Packer, turned out to be an Indian artist named Farley French .
Attempts to establish a label of authentication
Authentication label proposed by the NIAAA in 1999.
In late 1999 the National Indigenous Arts Advocacy Association (NIAAA) tried to introduce an authentication label aimed at promoting genuine products and deterring fraud in the Indigenous arts and crafts industry. The idea was to finance the NIAAA by charging fees for applications and labels. However, by 2001, the protocol was decommissioned due to mismanagement and lack of funds.
2006 saw a Product Authenticity Forum in another attempt to protect the significant Australian export industry of Indigenous art. Research has shown that the $700 million tourism gift market prefers functional gifts that tell a story and are Australian-made. But to date the market is without a label that provides security.
Chemical code protects Aboriginal paintings
The world’s first chemically protected artwork: Wunubi Spring by Kimberly artist Freddie Timms. “Make me feel better, you know, with that chemical,” Mr Timms said .
In an attempt to introduce a secure mechanism to identify original Aboriginal paintings a secret chemical code has been painted into an Aboriginal art work to outwit forgers who prey on Indigenous artists.
In the process chemical ‘fingerprints’ are mixed into each ochre that an artist uses to create their painting. The world’s first chemically protected Indigenous artwork is Kimberley artist Freddie Timms’ “Wunubi Spring” which he created in September 2008. The combination of all fingerprints is unique and helps experts identify the painting.
The chemical fingerprint cannot be entirely removed or seen with the naked eye. It can also be applied to existing paintings or their canvas.
The chemical technique was created by Rachel Green, a forensic science researcher at the University of Western Australia.
“Five different colours have been encoded differently, so they’re quite chemically unique,” Ms Green said.  “They can’t be reproduced.”
The new technique is hoped to help identify art works which are produced in Europe, imported into Australia and then taken into Aboriginal communities where artists paint some parts of them to claim them as their own .
An Aboriginal anti-theft system
In 2007 the Ceduna Aboriginal Arts and Cultural Centre became the first Aboriginal arts centre in South Australia to authenticate an Aboriginal artwork with new technology designed to safeguard art against counterfeiters and thieves .
Once the artwork has been tagged the details are saved and fed into a catalogue of Aboriginal art throughout Australia.
The system is called IDENTEart and authenticates an artwork with a microdot tag provided by Aboriginal-owned company Datadot DNA.
The moment an Indigenous person creates an artwork it is protected under the Copyright Act . Any subsequent sale of the art does not automatically endorse the copyright which remains with the author unless they decide otherwise.
Visual arts image protected by Viscopy. You can search for keywords or artists on their website .
Aboriginal artists can decide to have a copyright collecting agency represent them. This means that the agency holds images of the artist’s work in a database. Clients of this agency can then license the use of art by paying a licensing fee to the agency. The artist receives this fee less any administration costs of the agency. This way the Indigenous artist does not need to negotiate or liaise with clients directly, making them less vulnerable to exploitation or breach of copyright.
The copyright collecting agency for Australia is called Viscopy. It’s a non-profit, artist-owned organisation which administers copyright for 6,000 Australian artists, including more than 4,000 Indigenous members. Viscopy also employs Indigenous people as information and education officers.
You should never give away your copyright… Because when I look at my art, I look at my family. So don't deal with anyone who doesn't respect you, who doesn't take on board your cultural needs, your family needs.—Bronwyn Bancroft, Aboriginal artist 
Copyrights are limited
Copyright for Aboriginal works is limited and does not protect oral culture .
The copyright creation and moral rights of a documentary film, for example, would belong to the director and the producer, but not to an Aboriginal family who might have contributed significantly to the film’s storyline.
The oral tradition or performance of a dance is not protected either, leaving it vulnerable to choreographers using them to create a new dance and owning the rights of the new work.
“A traditional dance is in that fuzzy ground where it’s too old for copyright protection,” explains Aboriginal lawyer Terri Janke . If an Aboriginal dance group is filmed, “there is a separate copyright in the film that belongs to the film-maker, often not the Indigenous dance group,” she says.
Care should be taken not to copy designs found in Aboriginal art work of any kind. When a group of didgeridoo players in the US published images of a didgeridoo-playing man along with a Dreaming story on their website they offended the traditional owners.
The man’s body paintings showed traditional designs which were “effectively private ‘signatures’” relating to specific country. Such designs belong to individual clans, are part of their identities and cannot be borrowed or imitated. New designs should also not be made up .
Sharing a traditional story also offended the elders. Such stories belong to clans and are theirs to tell.
However, copyright laws did not cover the case. An Aboriginal lawyer specialising in intellectual property commented that copyright laws would only have been breached if the group had performed - without permission and attribution - songs that had been formally registered for copyright .
Singing ancient traditional songs would not breach copyright either as they are older than 70 years, but it would disrespect Aboriginal protocol.
That's part of the problem, people can do that [disrespecting Aboriginal protocol] and not infringe copyright laws, but you can see how offensive it is to Indigenous people.—Terri Janke, Aboriginal lawyer 
Copyright permission paid with a medal
A curator of the Art Gallery of New South Wales told visitors the following story.
The Australian one-dollar bill featured parts of David Malangi’s 1983 art work ‘Gunmirringu funeral scene’ on its reverse side—but without anyone having asked for his permission to do so.
Since the bills had already been printed any redesign would have been extremely costly. The story has it that David eventually agreed to have his copyrights paid with 500 dollars, a medal and an army tent.
One-dollar bill and David Malangi’s artwork. You can see clearly how the note copies parts of David’s painting into the design.
Is this item authentic Aboriginal art?
Commonly there are four elements used to identify an artwork as “authentic” Aboriginal: [*]:
- A story. A story, most often related to the Dreaming, should be associated with the artwork. Problem: Not all pieces need a story, e.g. body markings or depictions of country. Some paintings come without a story, deliberately or by accident.
- The artist is Aboriginal. Problem: There can be a fine line between an Aboriginal artist’s contribution to an artwork. For example, is a didgeridoo that is mass-produced by non-Aboriginal people, but painted by Aboriginal people, an authentic Aboriginal product? There are even greater problems with artwork produced by Aboriginal people of mixed descent who often find themselves having to defend their identity.
- Authority to use style or symbols. Has the artist the authority from the relevant members of the Aboriginal community to paint in a particular style or using a particular set of motifs or icons? Problem: How can you assert this? Even gallery staff can have difficulties answering this question.
- Cultural relevance. Does this art come from, and is within the bounds of, traditional Aboriginal culture? It wouldn’t be authentic if a mainland Aboriginal artist used the Torres Strait Islander style. Problem: This can be hard to establish.
What can you do?
As a layperson it is extremely hard to establish the authenticity of an Aboriginal work of art. In the absence of a national label of authenticity your best bet is to contact an arts centre and seek information there.
Make sure you visit an Aboriginal-owned and controlled art centre before you decide to buy.
Fact There are often also subtle ‘marks of authenticity’ embedded in Aboriginal paintings. Many desert art artists paint out in the open where it’s dusty. The works of Emily Kame Kngwarreye, from the Utopia community in the Northern Territory, are known to contain hairs of her brushes or little bits of sand from the places where she was painting.
Note Consult an expert when in doubt about a piece of Aboriginal art. Businesses have been taken to court over art classified as ‘Aboriginal’ when it was not. Be especially mindful before buying from online auction sites. See ACCC v Australian Dreamtime Creations for a sample case.
When we painted, people walked over [the paintings], dogs slept on them when we stopped.—Kumpaya Girgirba, Martu elder and artist 
Respecting cultural values
A label of authenticity serves not only the buyer to know that Aboriginal people have crafted this art, it also serves the Indigenous peoples.
For Aboriginal and Torres Strait Islanders the symbols and motifs used in their designs also hold cultural significance for a particular group. Exploitation of the design impacts not only on the artist but also on the group.
Even if Aboriginal artists paint they have to obtain permission to use icons and symbols of other Aboriginal painters. “[My mother] showed me her artworks and the icons she used,” says Noongar artist Jo Stuurman . “I was given permission to use those icons in my artwork, which is very important in validating your artwork and giving it spiritual meaning.”
Indigenous art protocol guides
The Australia Council for the Arts supports Australia’s arts through funding. It has a suite of five protocol guides that addresses moral, ethical and legal considerations when dealing with Indigenous arts.
The five booklets cover media arts, music, performing arts, visual arts and writing, and are relevant to anyone working in or with the Indigenous arts sector - including artists, government, media, galleries and teachers.
The protocol guides endorse Indigenous cultural and intellectual property rights that are also confirmed in the 2006 United Nations Declaration of the Rights of Indigenous Peoples.
Each of the guides includes case studies of best practice and a checklist of key points for readers to consider. They are available for download at www.australiacouncil.gov.au.
The Indigenous Australian Art Commercial Code of Conduct deals with issues around Aboriginal art such as
- identifying the artwork’s community of origin,
- community consultation to establish their custodianship of secret and sacred objects,
- organising repatriation of objects,
- developing and implementing appropriate policies for the handling of secret and sacred material, and
- the role of galleries, dealers and collectors.
“Everyone else does it”
An Aboriginal woman visits India. She comes across a skinny dread-headed man with an Indian guy carrying a didgeridoo .
[Aboriginal woman asks:] “Hey mate where did you get that?”
“Oh, I made it.”
“Yep, I’m sure you did. Who taught you how to play it?”
“I taught myself.”
“Have you ever been to Australia?”
“Have you ever met any Aboriginal people?”
[The skinny man enters the conversation.]
“Yeah, we paint them and sell them in the street. We give lessons too. If you want to learn how to play one we’ll be back there in an hour.”
“Well, sorry, no, I don’t. And actually they are a men’s instrument and women aren’t supposed to play them. It’s very disrespectful.”
“No it isn’t.”
“Oh believe me, yes it is, and I think I know.”
“Why would you know?”
“Believe it or not I am actually Aboriginal, that’s why. So you are painting them, selling them, giving lessons on them without any permission and knowledge or experience of Australian Aboriginal culture at all.”
“Well everyone else does it.”
“Right mate, yep that makes it okay.”
Voices of Aboriginal artists
Responses by Aboriginal artists to a petition  which aimed to ban the import of art not made by Aboriginal Australians:
As an Aboriginal artist I strongly protest against the appropriation of Aboriginal totems and motifs for use in the tourist trade as this seriously undermines the integrity of Aboriginal art. To depict something as "Aboriginal style" is a violation of the integrity of Aboriginal artists.—Janelle Evansk, Brisbane, QLD
As Chair of the QLD Indigenous Arts Marketing & Export Agency within Department of State Development Trade & Innovation I fully support this initiative. We must protect Indigenous Australian art and cultural products [...]. It is [...] an ethical and spiritual requirement that we do so!—Debra Bennet, QLD
I work in Aboriginal health, I am an Aboriginal registered nurse and artist, I have seen the enormous health benefits that exist for my people with art in their own culture. Art is an expression of self & healing for my patients, family and friends who use art for healing, empowerment and economics.—Sylvia Lockyer, Port Hedland, WA