Radio National Transcripts:
The Law Report
Tuesday, 22nd August 1995
Susanna Lobez: Last week in Victoria was Arts Law Week, and
lawyers and artists got into cosy huddles to discuss how to deal with
age-old rip-offs and those made possible by the new technology. One of
the organisers was Michael McMahon, a lawyer in arts management.
In the past he headed the Arts Law Centre and the National Indigenous
Arts Advocacy Association.
Michael McMahon: I think that the last twenty years or so in
Australia have seen quite a change in the way in which artists perceive
lawyers, and in the way that lawyers perceive artists as well. And I
think that's come about because of the increasing professionalisation of the
arts in this country, and the recognition that the arts actually form a
very important economic base to a large part of our community.
There have been significant changes and significant recognition
of the cultural industries in this country. And we're seeing some
possibility of law reform now in the copyright area to widen the range
of circumstances where a creator would be rewarded and there's
general talk about a diffusion right rather than specific rights in the
Copyright Act. I think lawyers do have to keep abreast with technology
and the way in which technology might be used both to the benefit and
the detriment of their artist clients.
Susanna Lobez: Has the technology boom of the last decade or so
given artists a bit of a kick in the pants to make them much more
conscious of the moral and the legal rights that attach to their work?
Michael McMahon: My experience is that some artists are
genuinely a bit concerned about the way in which technology has made
their work more widely available, and the incredible range of
reproduction techniques that are now available.
Susanna Lobez: Another dilemma, Michael McMahon, that must face
artists and the lawyers who try to assist artists, is that between the
search for exposure, and wanting to keep control and wanting to be paid
for what are your proprietary rights.
Michael McMahon: That's essentially what artists are having to
make a decision about at the moment. Do I close it down a bit and see
what's going to happen? Or do I embrace these new means of
reproduction and new means of using my work, at the risk that I
may not get the financial reward that perhaps I would have, five or ten
years ago?
I think there's a great irony in the fact that moral rights have
been on the law reform agenda in this country for a long time, they have
been promised since about March 1993, and they're probably going to come
into existence at the very time when it's going to be extremely
difficult to actually apply them to the benefit of the people who have
asked for them, that is, the artists.
Susanna Lobez: Now, one of the most recent cases that you've
been involved with, Michael McMahon, is what's become known as the
Aboriginal Carpet Case. Tell me how that unfolded - or unrolled.
Michael McMahon: The Aboriginal Carpet Case was a matter that
came before the Federal Court and was decided in December last year in
favour of a number of very prominent Aboriginal artists. A Perth
based company and its directors chose to make into carpets the
work of these artists. The carpets were made in Vietnam, they were
imported into Australia and exhibited and sold here. The reproductions
all occurred from a folio published by the National Gallery of
Australia as an educational resource, and also a calendar that was
published. So, what was chosen to be reproduced on the carpet were the
very best
of Aboriginal art out of a major public institution in this
country.
The company continued to import and sell the carpets right up
until late 1994. The organisation which I worked for, NIAAA, coordinated
the case on behalf of the Aboriginal artists. And the trial judge handed
down his decision in December in favour of the artists and made
them a large award of damages, and also set a number of important
precedents. Probably the most important of which is that His Honour,
Justice Von Duser, assessed part of the damages as being
attributable to the cultural harm suffered by the artists. The evidence
in the case was that unauthorised reproduction of significant works, and
it's
important to remember that a number of the works had important
ceremonial and sacred significance to the people concerned and that
they, as copyright owners, had agreed to allow reproduction for
educational purposes but there's no way they would have allowed
reproduction for commercial products, like carpets, certainly not for
people to walk on...
Susanna Lobez: Or tea towels.
Michael McMahon: Or tea towels or anything like that. I think
the importance of the case is that it is recognised as one of the
largest copyright cases to come before the Federal Court, and it's one
that's
involving artists, and it should send the very clear signal to
people that artists will act to protect their copyright. I think it was
particularly significant that it was Aboriginal artists who brought this
action, and that
they are showing the way for other artists to protect the
intellectual property in their work.
Susanna Lobez: And what did the defendant carpet-makers argue?
That imitation is the sincerest form of flattery?
Michael McMahon: The defence was quite complex, and took into
account a number of points. I think the presumption in this case,
though, was that the art works involved were old, they were tribal, and
they
could be used in any way at all. The example was put a number of
times that certainly it's similar to the situation where they went into
the National Gallery and took the Ned Kelly series and made them into
carpets. And no one would do that, without some understand that
there was a copyright issue. And yet it was okay to do it for the
Aboriginal works because there was this idea that they were old and they
were
tribal and they were, I suppose, fair game.
Susanna Lobez: It sounds like one of the most significant
factors of that case was the element of desecration of cultural images
and icons. What about the desecration and commercialisation of our Anglo
European cultures and icons?
Michael McMahon: I think there are other parallels like, for
example, I think in Europe - and this is not something which I've
studied, but I think the reproduction of religious icons within
communities in Eastern
Europe is actually quite rigidly controlled. And that in a way
is almost a sort of customary law as well, in the Aboriginal sense.
Susanna Lobez: Arts Law manager, Michael McMahon.
This is a transcript of the Law Report as originally broadcast
on Radio National, the Australian Broadcasting Corporation's national
radio network of ideas.