I’ve been following the media’s reporting of the proliferation of graffiti paintings of Wandjina, a character in Aboriginal Australian mythology, in inner-city Perth by an unknown artist. The phenomenon has been thoughfully blogged about by Rosemary Lynch, and is also covered by the ABC blog Articulate. The photo below, by Technobohemian, is of one of the many images in the Flickr Wandjina pool.

324723127_29dcec61a7 intellectual property and indigenous art

The graffiti has been deemed controversial because the unknown artist is reproducing the figure of Wandjina without ‘permission’ of the Mowamjum community. There is a current debate in Australia about indigenous art and intellectual property, and many Aboriginal artists have been badly exploited financially and have not received proper moral rights in relation to their works. This is different, however, in that no existing work is being exploited. Rather, the style is being copied.

There is some ambiguity about whether this is a case focussed on religious values or indigenous cultural values. Australian copyright law does not protect the identifying features of a style or technique (in essence, the creative style of the particular individual or community) from replication or exploitation. It does protect the unauthorised reproduction of an existing work, such as on posters or t-shirts, but does not protect mimicry of the style of an artist in the creation of new works by other artists.

A good example of the latter is the Australian artist Gordon Bennett’s series of paintings ‘Notes to Basquiat’, which reference and mimic the iconography and style of the American artist Jean-Michel Basquiat. Below is a photo of Notes to Basquiat: Cut the Circle 2001 (photo by John O’Brien) which is from Sherman Galleries.

cut-circle intellectual property and indigenous art

In mimicing the style of other artists, the artist painting the Wandjinas in Perth is not violating copyright.

Copyright does not protect religious symbols. Such symbols do not have recognised owners, and being thousands of years old, would be out of copyright as it is currently defined. The case of Piss Christ demonstrates that no one owns the image of Jesus. Consequently, how can anyone claim ownership of a character much older than Jesus? So copyright has not been violated in terms of religion either.

I do not claim that copyright is perfect; it is not. This is a complex matter that goes beyong stratightforward copyright to cover concepts of cultural integrity. Does indigenous cultural knowledge require or deserve more protection than other forms of cultural knowledge? Can indigenous (or other) communities own and control in perpetuity graphic styles their culture has created? For example, should Spain own surrealism due to the work of Miro and Dali?

intellectual property and indigenous art

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