Bullroarers - "fake" or "authentic"

A recent decision by the Federal Court has exposed the conduct of one company in the “authentic Aboriginal art” industry that supplies much of the material sold to the tourist and souvenir market in Australia as having engaged in unlawful conduct.

In late December Justice John Mansfield found that the Adelaide-based Australian Dreamtime Creations Pty Ltd, (ADC) and the sole ADC Director, Tony Athaniou, had committed numerous breaches of the Trades Practices Act in relation to the production and sale of material purporting to be Aboriginal art.

Justice Mansfield found that since 1996 and particularly between 2007 and 2009, ADC had engaged in “misleading and deceptive conduct” in relation to representations on its website.

Justice Mansfeld made orders that:

1 – The first respondent (ADC) be restrained, whether by itself or by its employees or servants or agents or otherwise howsoever for a period of three years from representing by any means whatsoever, including by any stamp or certificate of authenticity, that any artwork promoted, sold or supplied by it to any person has been made, painted, created, crafted, carved, or otherwise produced by a person of Aboriginal descent unless the artwork was, to the best of its knowledge, made, painted, created, crafted, carved, or otherwise produced, as the case may be, by a person of Aboriginal descent and from using the words “Aboriginal Art” or words describing an artwork as “Aboriginal” unless it has made such enquiries as it considers appropriate to be satisfied that the artist or artists of each such work is a person of Aboriginal descent, and it is directed to retain for a period of five years from the time of such enquiries a record of the basis upon which it attained that satisfaction.

2 – The second respondent (Tony Athaniou) be restrained, whether by himself or by his servants or agents or otherwise howsoever, from being directly or indirectly knowingly concerned in or party to ADC or any other trading corporation, representing that any artwork to be promoted, sold or supplied to any person has been made, painted, created, crafted, carved, or otherwise produced by a person of Aboriginal descent unless the artwork was, to the best of his knowledge, made, painted, crafted, carved, or otherwise produced as the case may be by a person of Aboriginal descent and from using the words “Aboriginal art” or words describing an artwork as “Aboriginal” unless he has made such enquiries as he considers appropriate to be satisfied that the artist or artists of each such work is a person of Aboriginal descent, and he is directed to retain for a period of five years from the time of such enquiries a record of the basis upon which he attained that satisfaction.

3 – The first respondent (ADC), within 14 days of the making of this order, provide to the applicant a list of the names and addresses of retailers to which it has sold or supplied artwork on consignment since 1 January 2007.

4 – The first respondent (ADC), within 21 days of the making of this order, send a letter in terms of Annexure “A” to these orders, on its letterhead to each retailer identified in Order 9 hereof.

5 -  The first respondent and the second respondent pay to the applicant its costs of the proceeding.

Justice Mansfield also ordered that ADC distribute the following letter to each of its retailers:

Dear Client,

On [insert date] the Federal Court of Australia made orders against Australian Dreamtime Creations Pty Ltd ACN 062 097 590 and its Director, Tony Antoniou, following legal action by the Australian Competition and Consumer Commission.

The Court found that the company and Mr Antoniou engaged in misleading and deceptive conduct, contrary to section 52 of the Trade Practices Act 1974 (the TP Act), by:

(a) representing that artworks including paintings, boomerangs, bull-roarers, carved wooden animals, carved wooden statues, didgeridoos, emu eggs, and ceramic objects including table platters, vases, wall plates, lidded boxes and bowls were painted by a person of Aboriginal descent when this was untrue; and

(b) representing that certain of the artworks referred to above were painted by an Aboriginal artist named Ubanoo Brown when this was untrue.

If you have in stock any painting purchased from ADC or taken on consignment from ADC since 1994 which is represented (including on the reverse of the item) to be the work of Ubanoo Brown, it is not his work. You should not sell the painting as the purported work of Ubanoo Brown.

If you have purchased or taken on consignment from ADC any of the objects referred to in paragraph (a) above from ADC since 1994 which feature an Aboriginal cross-hatch design, there is a very real risk that those objects were not painted by a person of Aboriginal descent. We invite you to contact us to discuss the authenticity of any such objects that have been supplied to you by ADC.

Sincerely

The representations by ADC and Athaniou were that a variety of works that ADC had offered for sale; paintings, prints, boomerangs, bull-roarers, carved wooden animals & statues, table platters, didgeridoos, emu eggs and ceramic objects etc; had been painted or made by an Aboriginal person – the fictional Aboriginal artist “Ubanoo Brown” – when they had not.

In a media statement Graeme Samuel, Chairman of the Australian Competition and Consumer Commission (the ACC) said:

Art consumers have the right to be confident that when purchasing Aboriginal art it will in fact be Aboriginal art.

That is stating the bleeding obvious, but Samuel’s statement begs the question of just how much that is sold as “Aboriginal art” in Australia is “authentic” and “genuine” and how much is fake?

Twenty or so years ago the renowned curator and author Vivien Johnson put together a travelling exhibition that highlighted the widespread and not-so-subtle appropriation of Aboriginal imagery & iconography, particularly by designers and manufacturers in the textile & clothing industries.

That exhibition, the “House of Aboriginality” travelled widely across Australia and I caught it in Darwin around the time that several landmark legal cases recognised, for the first time at non-Aboriginal law, the rights and interests of Aboriginal people in the control of the use of their imagery from unlawful appropriation.

Johnson’s exhibition has passed into history but you can still see images from it at the National Library of Australia’s invaluable Pandora web archive service.

The House of Aboriginality

Several things stand out in my memory of Johnson’s “House”, the unrelenting dreariness and tackiness of much of the material in the exhibition – the “western Desert” design on the men’s underpants and the toilet roll holder with distinctive “rarrk” painting style from Arnhem land come immediately to mind. And back then much of the material was Australian-made and was pitched mainly to a domestic audience.

Dot painting jocks

The mainstream Aboriginal art market is a notoriously fragmented and fractious industry.

The fine-art, high-value work that is largely produced in the centre and north of the country forms a relatively small part of the overall market, the largest part being taken up by more moderately-priced artworks.

Together these make up the most visible – in terms of economic value and artistic activity – sectors of the industry. But, as several recent high-profile cases have indicated, these sectors are not immune from forgery and fraud. And there is recent evidence to suggest that off-shore operators are targeting this most lucrative end of the market with high-quality forgeries – with several instances of actual or suspected forgeries of mid-level art coming out of China and south-east Asia.

And below the mainstream Aboriginal art market lurks the tourist and souvenir market in “authentic Aboriginal art” that relies in part on companies like ADC for its product.

The tourist & souvenir Aboriginal art market has changed with the times and is just as tacky now as when Vivien Johnson examined it twenty years ago, though now most of the “product” is sourced from south and south-east Asia.

And the relative strength of that market can be usefully gauged by a stroll through the Alice Springs CBD.

Apart from the dozen or so commercial galleries that concentrate on fine-art and moderately-valued works, in the space of a few hundred metres there are five outlets dedicated to tourist souvenirs and another eight – newsagents, general stores etc – that sell “Aboriginal art” souvenirs and material as part of their stock.

Add the half-dozen and more similar outlets scattered across town in hotels, shopping centres and at the airport and there would be twenty outlets for souvenir-level works in a town with 24,000 permanent residents that services more than 230,000 international tourists each year.

And where does the “Aboriginal art” these stores sell come from?

That’s one question that Daniel Burdon asked in a front-page expose in the Alice Springs twice-weekly newspaper, the Centralian Advocate on 24 December 2009.

One local retailer told Burdon that he regularly received emails from south-east Asian suppliers offering bulk quantities of “authentic Aboriginal art” at prices several orders of magnitude cheaper than any local manufacturer could ever realistically charge. Another told him that she had seen villages in Indonesia with factories dedicated to producing fake Aboriginal artworks.

And a quick internet search reveals that there is no shortage of websites, some based in Australia, others well-offshore, offering bulk quantities of a bewildering range of tacky crap being passed off as “authentic Aboriginal art”.

Justice Mansfield had a fair bit to say in relation to the representations made by ADC – particularly in relation to its use of ‘certificates of authenticity’:

The certificates of authenticity representation

The uncontested evidence, including that of Mr Antoniou, confirms the supply of certificates of authenticity by ADC.

It is plain from the form of those certificates that they represented that the paintings supported by certificates of authenticity were painted by a person of Aboriginal descent, and that some were painted by a person who used the name Ubanoo Brown. It is unclear the extent to which certificates of authenticity included the description “Artist: Ubanoo Brown”, but I find that occurred in a not insignificant number of them.

I have said, in my view, that describing an artwork as “Aboriginal art” represents that the artwork is created by a person of Aboriginal descent. The certificates of authenticity conveyed that representation, not simply by that formulation, but by the words used. The certificates included the words “Authentic Aboriginal painting” and a guarantee as to the authenticity of the painting. In my judgment, the use of the words “authentic” and “authenticity” make it even clearer that the paintings with which the certificates of authenticity were supplied were painted by a person of Aboriginal descent. It is almost an oxymoron to contend, as ADC and Mr Antoniou did, that authenticity in conjunction with the word “Aboriginal” conveyed that the paintings may have been painted by a person of non-Aboriginal descent, in a style of Aboriginal art. I reject that submission.\\

I have also found that the paintings were painted either by Mr Goodridge or by other persons who were not of Aboriginal descent and by persons who did not identify themselves and were not known as Ubanoo Brown. Consequently, the certificate of authenticity representations, when made, were false and misleading.

I note that, in the defence, ADC and Mr Antoniou claim that the paintings the subject of the certificate of authenticity representations were souvenirs and not fine art or investment artworks. I have indicated above that, in my view, that distinction is not directly relevant to whether the representations were made, or were false and misleading. However, the evidence of Mr Antoniou does not indicate that in fact the paintings which were provided with the certificates of authenticity were at the very lower end in terms of value or quality, or were sold as one of apparently cheap mass produced replicas (which might be described as souvenirs) in any event. He said that the paintings were provided to galleries to support the sale of paintings from ADC. They were obviously not of the character which might readily be described as souvenirs.

But maybe the last word on what “fake”, “authentic” and “genuine” all mean in the context of the tourist and souvenir trade in “Aboriginal art” should be left to ADC’s Tony Athaniou.

In July 2009, just after the ACCC initiated the proceedings that led to Justice Mansfield judgment that so roundly condemned his business practices, Athaniou told Yuko Narushima and Joel Gibson of The Age that:

“The thing is there’s various interpretations of authentic. Authentic to me means that it is hand-painted.“

“Ubanoo is not a real name, it’s a pseudonym for the artist to paint that style.” “The fake or misleading advertising I’ve been doing is for an artist who doesn’t even exist.”

More than a few retailers and wholesalers – in Alice Springs and beyond – will have been having a very close look at their stock-in-hand and future orders over the Christmas & New Year break.

Hopefully they won’t be using Athaniou’s guide to the meanings of “authentic”, “fake” or “misleading” as a guide to the provenance of their stock.