Art, appropriation and Adopt-a-Lawyer: Helping Indigenous artists ‘stay in the Black’

The Arts Law Centre of Australia (Arts Law) recently moved into new headquarters at the University of Technology, Sydney, in the inner city. The walls of its new office are strikingly bare of art while paintings and prints lie stacked in the corridors, waiting to be hung.

Arts Law CEO Robyn Ayres points to a print of Owl Man, a compelling linocut by senior Tiwi artist Bede Tungutalum.

This year marks the twentieth anniversary of Arts Law’s Indigenous service, Artists in the Black (AITB). Owl Man became the centre of an early action by AITB when Tungutalum noticed an unauthorised print in a gallery in Cairns. The printmaker had altered the image – which was supposed to be a self-portrait – by adding nostrils and lips.

“Not only did he change the print,” says Ayres, “which is [infringing] the moral right of the artist and a copyright infringement, it was also a cultural issue. Because it was a self-portrait, it shouldn’t have been able to breathe – so it purposely didn’t have nostrils and lips. The image shouldn’t have a life force: it would be harmful.”

With pro bono support from Allens Arthur Robinson, AITB was able to have the pirate print withdrawn from sale. Tungutalum received compensation and donated an original print as a thank-you gift.

Arts Law is a not-for profit national community centre for the arts, providing free or low cost specialised legal advice, education and resources to Australian artists and arts organisations across all art forms. It gives legal advice to artists and arts organisations throughout Australia. It has four lawyers in the Sydney office and three working remotely, and a pool of more than 300 lawyers nationally who provide almost 3700 hours of pro bono support per year – more than half of it to AITB.

Most of Arts Law’s lawyers are specialists in commercial contracts or intellectual property. Copyright issues in particular are not always well understood by non-lawyers. In the earliest days of the centre, a man rang up to ask if it were possible for his horse to hold copyright. “I can’t remember exactly what the horse had done,” says Ayres – but the short answer was “no”.

Arts Law did little work with First Nations people until 2003, when it received pilot funding from the Australia Council to set up AITB. Today, Aboriginal and Torres Strait Islander artists make up 25–30 per cent of Arts Law’s entire client base.

“A good job for a girl”

Ayres’s professional background primed her for the changes that took place at the centre, although she grew up in a non-political lower-middle class family on the Northern Beaches with “no burning passion to be a lawyer”.

“In fact,” she says, “I didn’t know any lawyers. I was brought up to be a teacher – it was a good job for a girl.”

But she got the marks to enter law school and ended up studying Arts/Law at UNSW, among many “people from private schools on a trajectory that was preordained”.

Ayres was admitted as a lawyer in 1985. The next year, she became an associate to the Chief Justice of the Northern Territory and that “really changed everything”, she says. She was in court almost every day, “and a chunk of that was criminal”, she says, “so I really saw what was going on”.

Ayres went on to work for Jim Muirhead when he became the first commissioner for the Royal Commission into Aboriginal Deaths in Custody.

“That was a total immersion,” she says, “not just into the deaths in custody but into everything about the people who died in custody. It was unbelievable, the size of the government files on these people, documenting every aspect of their lives: because quite a few had been removed as children, it wasn’t just their involvement in the criminal justice system, it was in health and education. It was incredible to see that these people had been monitored throughout their lives in a way that non-Indigenous people would not have been.”

She stayed with the Royal Commission until 1991. In 1993, she moved with her family from Sydney to Perth to work as a lawyer at the Aboriginal Legal Service of Western Australia, examining the implementation of the recommendations of the Royal Commission. “It looked like nothing was happening,” she said, “and investigating it proved that was actually the case.”

After four years, she left to take up a position as executive director of the Mental Health Law Centre of WA. She brought this organisational experience to Arts Law when she returned to Sydney to run the centre in 2002.

About Artists in the Black

In the two decades since the founding of AITB, Ayres says, the service has worked mostly in the fields of copyright, contracts, and wills and estates. Estate planning grew into an issue for Indigenous artists and arts centres when it became apparent that many creators die without leaving a will. It was particularly important in WA where, until 2013, the law stated that if a person was more than a quarter “full blood”, their estate automatically went to the public trustee to distribute.

Ayres says, “The Department of Aboriginal Affairs in WA knew it probably wasn’t a good law, but it wasn’t high on the legislative agenda. And unless you make a noise about things, nothing changes. It took us about six years of lobbying the government until finally we got the law changed so that Aboriginal people were treated the same way [as other Australians] and their families could apply for administration orders in WA.”

More recently, AITB was prominent in the Fake Art Harms Culture campaign against the importation of cheap copies (or shoddy parodies) of Indigenous artwork decorating mass-produced yidakis, clapsticks, boomerangs and T-shirts.

“When you’ve got these rip-offs coming in from overseas, it’s another form of colonisation,” says Ayres. “Some of the stuff that you see, senior men have said, ‘You can’t have that. You have to get rid of it. It has to be burnt.’ So it’s been bought and burnt, destroyed.”

A lot has changed in 20 years, much of it for the better. The legal community has become more enthusiastically involved with the arts in general, and with AITB in particular.

AITB runs programs such as Adopt A Lawyer, in which arts centres gain what Dan Creasey, Director of Responsible Business at King & Wood Mallesons, describes as “phone-a-friend” access to pro bono legal representation. Under the scheme, a law firm appoints an arts centre with a dedicated contact/lawyer, who might take part in an immersion experience with a local Indigenous community.

Listening and learning in the community

Jo Renkin, Pro Bono, Community and Environment Partner at Lander & Rogers, says, “It is an incredible privilege to be welcomed onto Country and to be taught culture and language by respected Elders. Coming from capital cities, our lawyers get to see and experience remote community life in a way that would not otherwise be possible. We go camping and fishing, participate in language classes, learn history and discuss with Elders their solutions for matters impacting the community and their hopes for the future.

“The opportunity to listen and learn, and spend time with artists in the arts centre and the community that lives around it, is life-changing.”

The benefits flow in every direction. King & Wood Mallesons’ practice focuses on First Nations young people and, says Creasey, “When artists are properly remunerated for their work, income streams flow back into community – which can only be a good thing for its young people.”

Professionally, says Renkin, “Lawyers gain an enormous amount from the two-way learning that occurs through the program. We are challenged to provide legal advice for a client in very different circumstances to many of our commercial clients. This enables us to expand our legal skills enormously and exercise our commerciality in different ways.”

Ayres is heartened by what she sees as “an honest desire in the corporate social responsibility of firms to actually be supporting Aboriginal and Torres Strait Islander communities”. In another positive development, the Government has committed to the introduction of standalone ICIP laws, Ayres says, but there still needs to be more professional development for First Nations people and more opportunities for them to take up leadership roles.

Ayres is proud that AITB has provided a training ground for careers elsewhere in the arts world. Its alumni include Kyas Hepworth, the head of Screen NSW, who spent a couple of years as AITB coordinator; and Patricia Adjei, once a lawyer at AITB and now a director at the Australia Council.

“It was a great experience for a junior lawyer,” says Adjei, “to be exposed to working in copyright and IP law but have that grassroots community engagement, where you actually got to meet artists in person and hear from them about issues they wanted help with. I loved doing the education workshops, where we would go out and present to artists and arts centres about their legal rights. That was the most rewarding part of the role – as well as starting my advocacy journey working on legal reform issues.”

No time to hang the pictures

Everyone at Arts Law works on AITB, but there are only two Indigenous staff. Ayres believes there should be a full team.

Ayers herself spends much of her time “madly applying” for funding. About half of Arts Law’s finance comes from the government – “I’ve actually got 10 government funders on one multipartite, multiyear agreement,” says Ayers – and the rest from earned income, philanthropy, donors and allies.

Given the effort to keep money coming in, Ayers says, “It might be a while before there’s time to hang the pictures on the walls.”

Photo credit Robyn Ayres: Stephen Oxenbury