Counterfeit Aboriginal art and cultural misappropriation

Aboriginal artwork is more than just art.

It’s a collection of historical artefacts, with each one telling a different story about Aboriginal heritage, culture and traditions, which have been handed down from generation to generation for over 50,000 years.

Accordingly, when counterfeit Aboriginal art is sold, it’s more than just an issue concerning consumer rights and authenticity.  It’s cultural misappropriation.

As Australia has no legislation that specifically deals with cultural misappropriation at present, the most common way to ‘fight’ it is to rely on the Australian Consumer Law.

In the case of Australian Competition and Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595 the court found that Birubi Art had breached section 18, subsections 29(1)(a) and (k) and section 33 of the Australian Consumer Law by making false or misleading representations that its products were made in Australia and/or were hand-painted by Australian Aboriginal artisans.

The reality was that over a period of two and a half years, Birubi sold 49,493 counterfeit boomerangs, bullroarers, didgeridoos and message stones that had been made in Indonesia (and not by Australian Aboriginal artisans), to around 90 shops in tourist hot spots across Australia.

The Federal Court when finalising the orders on 26 June 2019 handed down a $2.3 million penalty to Birubi Art for selling the counterfeit Aboriginal art.

Underlying the size of this penalty was a rationale that the Federal Court wanted to deter other manufacturers and sellers of counterfeit goods from engaging in this conduct as it was undercutting the genuine Aboriginal art industry, and could cause offence and cultural harm to Australian Aboriginal persons.  In particular:

Contraventions of this kind are serious, not only for their immediate potential to mislead consumers, but particularly for their potential to thereby undermine the integrity of the Indigenous arts sector. Such conduct puts at risk an array of economic and social benefits which are vital to Indigenous communities, particularly those in remote areas. It is also liable to cause offence and cultural harm to Australian Aboriginal persons. A strong deterrent message is therefore important to ensure that other would-be contraveners are not tempted to prioritise their own short-term profits over the risk of such harms” (ACCC’s penalty submissions at [2])

“… that deterrent effect is of particular importance in the present context given the economic, social and cultural harms to Indigenous Australians which may flow from businesses misrepresenting the provenance of art and souvenirs as Australian Indigenous art and artefacts” (Perry J, Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996 at [23])

This decision and the rationale for such a significant penalty aligns with the Australian Parliament’s attempts to address the cultural significance to Australian Aboriginal people when their heritage, culture and traditions are misappropriated. The House of Representatives Standing Committee on Indigenous Affairs issued a  Report on the impact of inauthentic art and craft in the style of First Nations peoples.

This report recognised that cultural misappropriation is a real issue that must be dealt with in Australia, and states:

  • 80% of Aboriginal souvenir products sold in Australia are counterfeit products that have no connection to Australian Aboriginal artisans; and
  • The counterfeit products –
    • exist solely to make money;
    • demean the rich and ancient history of Australia’s Aboriginal people, as they don’t teach or inform the buyer about Aboriginal heritage; and
    • have a negative impact on Australia’s image overseas – Aboriginal culture is an intrinsic part of the Australian culture and allowing it to be compromised damages the identity or our nation as a whole.

Notably, it recommends (inter alia):

  • That a Certification Trade Mark scheme for authentic First Nations art and crafts be developed by IP Australia in consultation with all relevant stakeholders; and
  • That a consultation process be initiated to develop stand-alone legislation protecting Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions.

Macpherson Kelley’s IP team is experienced in utilising a range of anti-counterfeiting measures to protect its clients.

It will keep an eye on the development of this sui generis area of Australian law to see how the Australian Consumer Law continues to be used to prevent counterfeit Aboriginal Art being sold, and the resultant cultural misappropriation from occurring.  If you require assistance with counterfeit products or cultural misappropriation, please contact Mark Metzeling of our Intellectual Property Team.

If you require assistance with counterfeit products or cultural misappropriation, please contact Mark Metzeling of our Intellectual Property Team.

This article was written by Mark Metzeling, Special Counsel – Commercial Intellectual Property and Trade.