On 21 December 2009 Justice Mansfield in the Federal Court found that Australian Dreamtime Creations Pty Ltd ('Dreamtime Creations') misled consumers by making misleading representations about artworks using Indigenous art styles. The Court held that Dreamtime Creations breached s.52 of the Trade Practices Act ('Act') which prohibits corporations from engaging in misleading or deceptive conduct. The Court found that the company's sole director, Tony Antoniou, was knowingly concerned in the conduct, and made orders designed to prevent both Dreamtime Creations and Mr. Antoniou from engaging in similar conduct in the future.
Dreamtime Creations promoted and sold a large quantity of artworks that were represented to be Aboriginal art painted by an artist called 'Ubanoo Brown'. In reality the artworks were not painted by Ubanoo Brown but rather a person of non-Aboriginal descent engaged by Mr Antoniou. Art galleries were supplied with 'Certificates of Authenticity' that used terms such as 'Authentic Aboriginal Painting', 'Aboriginal Fine Art Canvas' and 'Artist: Ubanoo Brown'. Some artworks also had stamps affixed to them that said either 'Traditional Hand Painted Aboriginal Art Australia' or 'Authentic Original Aboriginal Art'.
Customers were also offered 'Ubanoo Brown's Dreamtime story' or a 'bush tucker dreaming' story in connection with some paintings. The company's website promoted Dreamtime Creations as a supplier of Aboriginal art and referred to Ubanoo Brown as the artist of a large number of artworks, describing him as 'a highly talented artist from Murchison River, Western Australia'.
Arguments that "won't wash" with the Court
Mr Antoniou argued that any representations about the artworks being 'Aboriginal' weren't misleading because a person did not have to be of Aboriginal descent to paint 'authentic' or 'genuine' Aboriginal art, and that 'Aboriginal art' describes an artwork style. The Court disagreed.
Mr Antoniou readily admitted that Ubanoo Brown was not the name of the artist who painted the work, but claimed that the name was used as a pseudonym to identify a collection of 'cross hatch' artworks rather than an actual artist. The non-Indigenous artist engaged to paint the artworks did not identify himself as 'Ubanoo Brown'; the name was in fact a pseudonym used by an Aboriginal artist briefly engaged by Mr Antoniou in the early 1990's. In these circumstances, the claim that the name was a pseudonym did not change the false and misleading nature of the representations made that the paintings were painted by a person using the name Ubanoo Brown.
Mr Antoniou also argued that a distinction should be made between 'souvenirs' and 'fine art' on a somewhat misguided assumption that representations about souvenirs would not be caught by the Act. The Court observed that representations can be 'false and misleading' regardless of whether they relate to fine art or souvenirs.
When can artwork be referred to as 'Aboriginal art'?
If any art dealers think it's acceptable to label Indigenous-styled artworks as 'Aboriginal art' when the artworks were not painted by an Indigenous artist, this decision should remind them otherwise. Justice Mansfield said that "to describe an artwork as 'Aboriginal' is expressly to say that the artist is of Aboriginal descent". The Court did not think that it was possible to label one particular style of art as 'Aboriginal art' because Aboriginal art is "not one-dimensional" but "multi-dimensional" and varies with region, artist, and over time. Therefore, to avoid the risk of breaching the Act art dealers should not describe art work as 'Aboriginal' or 'Aboriginal Art' unless the work was actually created by a person of Aboriginal descent.
How can consumers and art galleries feel confident they are receiving genuine Indigenous art?
Although there is no national system responsible for authenticating Indigenous artworks many art dealers have a practice of issuing certificates of authenticity to increase consumer confidence in the product. This practice is clearly open to abuse as evidenced in this case, and requires careful scrutiny. Hopefully the case of Dreamtime Creations serves as a warning to unscrupulous art dealers that the ACCC will investigate similar types of conduct and take enforcement action.
It's also hoped that the introduction of the Indigenous Australian Art Commercial Code of Conduct will help reduce unethical behaviour in the Indigenous art industry. The Code sets out requirements and procedures for the issue of certificates of authenticity, known as 'Indigenous Australian Art Commercial Code of Conduct Certificates'. Consumers and galleries are likely to be more comfortable that the artworks they acquire are genuine Aboriginal art if accompanied by such a certificate. It is, however, noted that the Code has its limitations as compliance will not be mandatory.
Meher is a solicitor at the Australian Government Solicitor on secondment to Arts Law.