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Introduction
Fake Aboriginal Art has been the bane of the Indigenous Arts Industry. Rip-offs take opportunity and money away from Indigenous artists. However, even worse, stylised faux objects demean the cultural heritage of Indigenous Australians.
In October 2018, the Federal Court delivered an important judgement against souvenir manufacturer, Birubi Art Pty Ltd[1] finding that they had mislead consumers under Australian Consumer Law (ACL) .[2] This case has ramifications for manufacturers who represent their objects as Indigenous and Australian made.
Terri Janke and Rhoda Roberts at CIAF 2017
The Facts
From 2015 – 2017, Birubi Art sold didgeridoos, boomerangs, message stones and bull-roarers in Australia. These items were handmade and painted with Indigenous style designs however this was not done by Indigenous people. The objects were produced in Indonesia but did not state this on the packaging. [3] The Australian Competition and Consumer Commission (ACCC) acted against Birubi alleging that Birubi had misled the public by selling items that contained Indigenous styles and symbols, but were not hand painted by Aboriginal artists, and were not made in Australia.[4]
Key Findings
The legal question for the Court to determine was whether the conduct of Birubi was ‘misleading and deceptive’[5] under Australian Consumer Law.[6] That is, was Birubi ‘s representation of the products misleading the public to think that the objects were hand painted by an Aboriginal person or made in Australia? Justice Perry found that Birubi’s conduct was misleading.
The Court focused on who the consumer was when deciding whether any misleading conduct had occurred by Birubi.[7] Justice Perry found that the purchasers of Birubi’s products are predominantly tourists and locals.[8] Her Honour found that consumers were likely to be misled by the design on the products in conjunction with labels that claimed the products were made in Australia, and their placement in outlets alongside authentic products.[9] The potential buyers of these products would have limited knowledge about Indigenous culture so would not be able to tell the difference between real and fake art when they are purchasing items. Justice Perry found that these objects and their labelling gave consumers the overwhelming impression that the objects where made in Australian and painted or handcrafted in Australia by Aboriginal Artists.[10] Therefore, Burubi was held to be in contravention of the ACL.[11]
Commentary
The case sets an important standard in the souvenir manufacturing industry given that most items are produced overseas. Misleading labelling on fake Indigenous art items that they are made in Australia or ‘hand painted’ is illegal.
Later in 2019, the Court will decide what the orders for Birubi Art Pty will be. The court has the power to order an injunction to stop continuing misleading products being made; to award penalties; and/or to order a compliance program.
The company Birubi is now in liquidation which could limit the impact of any future order. The ACCC however, has sought permission to proceed against the liquidator.
Another important development is the release of the House of Representatives Standing Committee on Indigenous Affairs’ Report on the impact of inauthentic art and craft in the style of First Nations Peoples.[12] Released in December 2018, the Report notes that around ‘80 % of Aboriginal souvenir products sold are fake art’.[13] The Standing Committee made several recommendations. One was that a stand-alone law regulating the fake Indigenous art industry be enacted by parliament to prosecute individuals who produce and sell fake art as well as those who engage in unethical conduct and treatment of Indigenous artists.[14] We support this recommendation and look forward to seeing a sui generis law that can cover the wider range of rip-off activity occurring in the Aboriginal and Torres Strait Islander Arts Industry.
In the interim, we recommend that souvenir manufacturers enter into fair art licensing agreements with Indigenous artists. Indigenous artists should seek legal advice on their arrangements with manufacturers. Consumers should look at product labelling with care. Look for the name of the artist and the origin of the product.[15] Better still, look for the Indigenous Art Code label. For more information read the ‘How to buy Indigenous Art Ethically’ Guide by the Indigenous Art Code https://indigenousartcode.org/how-to-buy-ethically/.[16]
Further information
To read the case see this link - Australian Competition Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595 (23 October 2018) . http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2018/1595.html
Competition and Consumer Act 2010 (Cth)
House of Representatives Standing Committee on Indigenous Affairs, Parliament of Australia, Report on the impact of inauthentic art and craft in the style of First Nations peoples (2018).
Indigenous Art Code, How to Buy Ethically (2018) Indigenous Art Code < https://indigenousartcode.org/how-to-buy-ethically/>
With special thanks to Gabrielle Sullivan - Indigenous Art Code.
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[1] Australian Competition Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595 1.
[2] Competition and Consumer Act 2010 (Cth) sch 2 item 18.
[3] Ibid.
[4] Ibid.
[5] Competition and Consumer Act 2010 (Cth) sch 2 item 18.
[6] Ibid.
[7] Australian Competition Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595.
[8] Australian Competition Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595.
[9] Ibid.
[10] Ibid.
[11] Competition and Consumer Act 2010 (Cth) sch 2 item 18.
[12] House of Representatives Standing Committee on Indigenous Affairs, Parliament of Australia, Report on the impact of inauthentic art and craft in the style of First Nations peoples (2018) 2.
[13] House of Representatives Standing Committee on Indigenous Affairs, Parliament of Australia, Report on the impact of inauthentic art and craft in the style of First Nations peoples (2018) 5.
[14] House of Representatives Standing Committee on Indigenous Affairs, Parliament of Australia, Report on the impact of inauthentic art and craft in the style of First Nations peoples (2018) 21.
[15] Indigenous Art Code, How To Buy Ethically (2018) Indigenous Art Code < https://indigenousartcode.org/how-to-buy-ethically/>
[16] Ibid.