Amity discusses recent Federal Court orders in an ACCC action against Queensland art dealers who were selling works incorrectly labeled as ‘authentic' Aboriginal art and artefacts.
Summary of the case
The Australian Competition and Consumer Commission (ACCC) commenced proceedings in the Federal Court on 23 July 2008 against art dealers who were misleadingly and deceptively selling fake Indigenous art as authentic works. Just over five weeks later, the matter was resolved, with the dealers acknowledging that they had broken the law and agreeing to stop their behaviour. This is good news for those creating or dealing in authentic Indigenous art and crafts as it shows the ACCC cracking down on misleading and deceptive conduct within the Indigenous art industry. However, it continues to be an area in which further action is required and illustrates the need for stronger protection for Indigenous cultural and intellectual property.
On 29 August 2008, Justice Logan made orders in ACCC v Farzad Nooravi and Homa Nooravi (trading as Doongal Aboriginal Art and Artefacts) that Mr Farzad Nooravi and Mrs Homa Nooravi, through their art gallery and website for Doongal Aboriginal Art and Artefacts, had engaged in misleading and deceptive conduct under section 52 of the Trade Practices Act 1974 (Cth). See Australian Competition and Consumer Commission v Nooravi  FCA 2021 (decided 29 August 2008). Section 52 of the Trade Practices Act states that it is unlawful for a corporation to engage in conduct, in trade or commerce, that is misleading or deceptive or likely to mislead or deceive.
Rather than proceeding to a disputed hearing, the ACCC and Mr and Mrs Nooravi reached an agreed position and presented consent orders to the court. Under these consent orders, the Nooravis acknowledged that they had breached section 52 when they advertised artworks, including boomerangs, didgeridoos, spear throwers, ceramics and paintings, for sale as ‘authentic'. In fact, the artworks were not ‘authentic' at all; they were created by three non-Indigenous white artists. The Nooravis also accepted their wrong doing in falsely representing that some artists whose work the gallery offered for sale were of Aboriginal descent; and in affixing false certificates of authenticity to artworks painted by persons who were not of Aboriginal descent.
For the next five years, the Nooravis have agreed that:
- if they wish to sell Aboriginal art or artefacts as genuine or authentic, then they will first obtain a statement from the creator of the product that the creator is of Aboriginal descent;
- they will not represent that a person is of Aboriginal descent until they obtain a statement from that person that they are of Aboriginal descent; and
- if they wish to represent that a person has a tribal name, they will obtain a statement that the person is of Aboriginal descent or if the person is not of Aboriginal descent they will make a prominent statement that the person is not of Aboriginal descent.
The Nooravis have also agreed to write to every person that purchased the fake works and inform them of what had happened and to pay the ACCC's legal costs of $7,500. Had the case continued to a contested hearing, the Nooravis would have risked being given much harsher penalties had the court found there had been a breach of the Trade Practices Act.
Authenticity and the need for industry regulation
Authentic Indigenous artwork is artwork that has been produced by an Aboriginal or Torres Strait Islander person. This case highlights the need for close scrutiny of the Indigenous art industry and is clear evidence that there are fake certificates of authenticity on the market. Arts Law supports the ACCC in bringing this action. The case illustrates the need for a uniform, regulated approach for protection of Indigenous art and culture.
Although this Federal Court decision shows the ACCC is serious about cracking down on people selling fake works as authentic Indigenous art, there is still often no protection against culturally inappropriate treatment of Aboriginal artworks or the sale of fake Indigenous art where the seller makes it clear to the public that the work is not authentic.
Arts Law is calling for new laws to protect Indigenous cultural and intellectual property and encourages Indigenous artists and arts organisations to contact us if they have direct experience of having their works or culture being used without permission. We also encourage people to voice their concerns to the Prime Minister or their federal member so that Indigenous people's views are heard regarding the appropriation of their cultural heritage.
For further information on Indigenous art authenticity and Indigenous artists' rights see the Artists in the Black website or call 02 9356 2566 (within Sydney) or 1800 221 457 (tollfree outside Sydney). For further information from the ACCC, call 1300 302 502 or visit the ACCC website and look for their information sheets ‘Unconscionable Conduct in the Indigenous Arts and Craft Sector' and ‘Your Consumer Rights: Indigenous Art and Craft'.
Amity Jarvis was a daytime legal volunteer at Arts Law.