The book covers seminal cases and developments showing large and small steps to better protect Indigenous art, noting those developments occur alongside the changes in societal views. After two introductory chapters, each of the following nine chapters gives a detailed description of a case or development, capturing the story behind the case including the personalities and communities involved and the evidence, statements, pleadings and submissions to provide the reader with a fuller understanding of the judgments and the cultural significance of Indigenous art and the communities from which it emanates. The reproduction of the detailed affidavit material provides an insight into the creation and meaning of Indigenous art works and their central role for the Indigenous communities. Colin also highlights some of the limitations of protecting first nations’ rights with current Western law. Nonetheless, given the large measure of success that has been achieved in these cases, Colin concludes that current copyright laws together with consumer protection laws, with sufficient funding, can go a long way to providing protection for Indigenous art even though they have limitations, particularly in respect of the notion of communal ownership.

The inclusion of images of the original works assists in understanding the significance of the works, and their beauty and, together with the images of the infringing items, assist in the true understanding of the copyright and other legal issues in the cases.

Chapter 1 sets the scene for both the cultural and legal fronts making the remainder of the book assessable to people with a wide variety of exposure to the legal and cultural issues that are discussed. In this chapter he exposes the fundamental incongruity of the Western laws which confer right on an author to a community where for Indigenous artist the “ideas of individual authorship and ownership are contrary to the traditional idea of the author acting as an agent or artistic hand for the cultural expression of the clan” (p5). It is the ease with which Colin, in his usual way, exposes the law in simple terms that makes this important work accessible to lawyers and non-lawyers alike.

Chapter 2 details Colin’s introduction to the world of Indigenous art, the meeting of the amazing artists and the cultural issues faced in the late 1980s. It is extraordinary to think that at that time – less than 40 years ago – there was an extant question as to whether Indigenous artworks even met the threshold of originality. In this chapter he starts to explain the communal connection and interest in art works: he says while the clan leader “was entitled to deal with appropriate artworks by way of sale and exhibition, he was responsible for making sure that they were properly respected even after sale … Blame and misfortune in that regard fell on him …” (p28). The inadequacy of personal remedies is a major issue that faces our society in dealing with protection of, and respect for, these important works and the Indigenous culture as a whole.

The first chapter focusing on a particular dispute is Chapter 3: The T-shirts Case. In this chapter Colin captures the story of the initiation, running and success of the “T-shirts case”: Bulun Bulun v Nejlam Investments Pty Ltd, Jennie Marie Beal and Malcolm John Beal. It is here that Colin also introduces the audience to the Indigenous Law Resources – a collection of material housed by Austlii with specific relevance to areas of practice impacting Indigenous people. Relevantly, the submissions and all of the affidavit material for this matter have been stored for future reference however, for the reader, Colin has usefully extracted the most poignant parts in the text. The infringing T-shirts were produced around the time of the Bicentenary in 1988 (the ‘celebration’ of white settlement) which as Colin identifies “raised some obvious and profound issues for Indigenous people”. It is in this context that the exposure of the cultural harm caused by the copying of Indigenous art works – in this case egregious – has particular significance. The description of the copying being “theft, in both material and spiritual sense” (p65) is telling and draws to mind some of the benefits of the more recent moral rights regime. The affidavit material is described in detail. This includes the evidence that was put together to support the claim of subsistence and reproduction of copyright. The compilation of evidence to describe the harm caused by the infringing material describes a significant impact on the economic base of Indigenous art and harm which “transcend court’s common ‘economic loss’ experience” (p64). This matter was settled when the respondents gave undertakings to the Court at the first hearing and agreed to cease manufacturing and selling the items and to deliver up all remaining stock.

Chapter 4: Yumbulul and the ten dollar note case deals with an action Mr Yumbulu brought against the Commonwealth and his agency for the alleged improper reproduction of his work, the Morning Star Pole (which is on display at the Australian Museum in Sydney), on the 1988 commemorative $10 note. Colin notes that this is another example where we see expression of Australian national identity through the misuse of Indigenous art imagery. While the case settled with the Commonwealth, aspects of the case are set out in Yumbulul, T v Reserve Bank of Australia, Aboriginal Artists Agency Ltd (1991) 21 IPR 481, as the case proceeded unsuccessfully between the artist and the agency on the question of permission. The chapter gives details of the significance of the original artwork and the comments from his Honour Justice French (as he then was) as to the potential issues for the Indigenous communal interest in reproductions of sacred objects expressly raising whether statutory reform was required.

The Carpets Case – one of the bestknown decisions concerning misuse of Indigenous artworks – is described in detail in Chapter 5. Colin tells the story of the unusual commencement of this case and the final judicially determined resolution in Mulpurrurru v Indofurn Pty Ltd (1995) 30 IPR 209. The chapter includes extracts from the evidence which assists in further understanding the distinction between the Indigenous spiritual culture and the Western material culture. The case was significant at the time because of the Court’s careful consideration of what constitutes a substantial part and its application to Indigenous artworks: in doing so his Honour place “indirect emphasis on the issue of cultural appropriation of a key part of the imagery, although the copying or direct similarity might be difficult for the Western eye to detect’ (p117). While the applicant was never able to recover the damages ordered to be paid, Colin identifies that the judgment was significant for two reasons – first, it “put aside … any suggestion that copyright was not available to provide a proper remedy for the unauthorised use of Indigenous art” and second it accepted compensation orders could take into account “cultural harm” in assessing additional damages (pp126–7).

Chapter 6 addresses the case of Bulun Bulun v R & T Textiles Pty Ltd (1998) 41 IPR 513. While the case was undefended, it proceeded to a full trial as a test case to particularly expose the unresolved issues in relation to copyright and communal or collective ownership with the Commonwealth and Northern Territory governments acting as contradictors. The subject matter of the dispute was the unauthorised reproduction of work on a T-shirt. The chapter explores the evidence in the case which goes into significant depths regarding the communal connection to the subject matter of the artworks, permissions required to allow the works to be made by the Indigenous artists and the responsibility of the traditional owners to create and protection the depictions. This exposes the complexity of the relationship between the artist and the “clan owner”. The spiritual connection is powerfully exposed in Colin’s description of the taking of evidence “on country” and the inspection of the Djulibinyamurr site (the subject matter of the original work and a sacred site). The Court determined that there was no need for an order in favour of the clan owners as the traditional copyright remedy resolved the issues. However, we are exposed to Justice von Doussa’s detailed consideration of the arguments put in favour of clan ownership and potential remedies – being native title rights and fiduciary rights. Colin also discusses how fiduciary rights may be used in the future.

Chapters 7 & 8 are used to discuss particular challenges in combatting fakery and the impact of cultural heritage protection legislative measures. Chapter 7 discusses the ongoing issue of fakery in various forms. This includes the case of ACCC v Biubi Art Pty Ltd [2018] FCA 1595 in which the consumer law was successfully used to stop the sale of merchandise with Indigenous imagery and were found to be labelled in a misleading way that the products were hand-painted and manufactured by Indigenous people. Colin discusses the limitations of the consumer law and the obstacles in the ongoing protection of the integrity of Indigenous art in the face of ongoing threats.

In Chapter 8, Colin discusses the Indigenous cultural heritage protection legislation enacted by State and Federal governments and the significant limitations on the effectiveness of those legislative measures to achieve their aims particularly in relation to Indigenous art. He gives his considered thoughts on the challenges of dealing with these complex issues and the potential practical and constitutional benefit of implementing a legislative approach at a national level. This chapter alsoaddress international conventions relating to intangible cultural heritage and the recommendations from the Australian Productivity Commission in 2022. In critiquing the recommendations and other criticisms of the current legislative regime, Colin identifies that education of the existing laws and funding for litigation will significantly improve appropriate protection and, that significant work has been done by Dr Terri Janke to identify proper practice and protocols dealing with both ethical and legal issues.

Chapters 9 and 10 deal with two specific instances of legal steps taken to provide a well-received outcome. Albert Namatjira’s work and copyright ownership is discussed in Chapter 9. Copyright in Namatjira’s work was sold by the Public Trustee in 1983 for a trifling sum. Colin recounts the story of a public interest advocacy group which garnered support of influential Australians and resulted in the copyright being returned to a legacy trust set up for the benefit of the Namatjira family. In Chapter 10, Colin is able to give an account of the unusual story of the Aboriginal flag and its more recent return into public hands (with appropriate compensation to the author of the work). Colin has had a long involvement with legal issues surrounding the flag and is able to discuss the issues thoughtfully from a legal and personal perspective. Colin first encountered Harold Thomas, the creator of the flag design, in the mid-1990s when he acted on behalf of Mr Thomas in relation to claims of copyright in the flag. The Court in that case, Thomas v Brown (1997) 37 IPR 207, declared that Mr Thomas was the owner of copyright in the flag after a number of twists and turns in the legal proceeding. While Mr Thomas and the Commonwealth made an agreement to permit the Aboriginal flag to be used as a national flag, its private ownership (and particularly the demands of Mr Thomas’ licensee) were incongruous with the flag’s increased national importance and gave rise to a Free the Flag movement. Colin together with a pro bono legal team assisted Mr Thomas in negotiating a resolution which placed the copyright in Commonwealth hands with appropriate compensation to Mr Thomas. It is a treat to hear this story from Colin given his central engagement with the process.

The book concludes with an Epilogue identifying “the rising power and influence of Indigenous art” and the important role the law has had to protect this art form. Colin discusses the importance of recognising the impact of Indigenous art’s “influence as a means of cultural expression and acceptance” as well as the economic benefits it confers on communities.

Colin takes us on a journey of the development of the law with respect to Indigenous art and through this provides an accessible and enjoyable lesson in Indigenous Australian culture. I commend the book to readers of Intellectual Property Forum.

Lucy Davis
A member of Emmerson Chambers practising in all areas of intellectual property law.

IPSANZ Forum June 2025
Melbourne University Publishing 2024, pp 272