Copyrights - Part 2

Progress Challenge 2: Case study

by Colleen Sedgwick

Imagine you are given a brief to design advertising material for a new line of food products called ‘Bush Tucker Treats’. The client has given little instruction or background information, except for the direction to make the images ‘look as traditional and authentic as possible’. The client casually mentioned that they love Indigenous art and would like to reference some if possible.

What questions would you need to ask to determine what the client wants regarding the use of Indigenous images? What information would you give the client regarding the use of these images? Does the cultural background of the client make a difference to your answer?

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Answer

With this set of instructions, I would be trying to ascertain first and foremost whether or not the client is an indigenous person themselves, because what questions I would ask about them and their preferences may well hinge upon their cultural background. It would mean having to include them in the process even more if they are, because chances are I would have a better idea as to what images I can and can't use, particularly if they continue to practise their own customs and social mores, and they can bring their own idea, opinions, insights, knowledge and experience 'to the table'. So I do think the cultural back ground of a client would determine my answer.

However, chances are, the 'Bush Tucker Treats' mentioned in the questions are probably food products that are grown and processed by large corporations and, in some cases, multinationals, and many stakeholders would be involved: large scale 'agri-businesses', large corporations like brand-name manufacturers (i.e. Kellogs, Tip Top, Sanitarium), supermarket chains, advertising companies, environmental groups and, most of all, Indigenous groups (that is, here in Australia, Aboriginal and Torres Strait Islander people). The end-users of these foodstuffs could be of any cultural background, including indigenous persons (and would therefore ultimately be the judge of how 'authentic' everything is, be it the food, the recipies or the artwork in advertising and packaging).

If the latter is the case (i.e. That they are not Indigenous), then chances are I would have to obtain permission from the artists themselves, or the group representing them. I would also consider giving my client whatever information they need regarding the use of Indigenous art, even downloading and printing out material like this 'Fact sheet' from The Australian Copyright Council on Indigenous Art¹, and let them know what I can and can't do.

I think it is important to know that Indigenous artists are pretty much covered by the same legislation as non-Indigenous ones are – while a non-indigenous artist is not allowed to copy the actual art works and performances by Indigenous artists, he or she is still allowed to use the same information, ideas, techniques and styles to produce something that is inspired by what they do. It is also important to know that only individual artists are covered, not whole communities. Chances are, however, this legislation may well be extended to include certain styles of art work as intellectual property, and if that is the case, I may not be able to do this in the near future, and this is another thing the client may need to be 'mindful' about.

So, whether or not the client themselves is Indigenous, it is vitally important to know what the rights and obligations are regarding the use of Indigenous art – whether it is an image (or something else) produced by them, or it is one of my own work using their styles and techniques – and then we get into a debate about first and second copyrights, fair use and a whole lot of issues which apply to everyone but even more so to Indigenous artists.

1Australian Copyright Council (2014): Artists – Indigenous: INFORMATION SHEET G082v07 May 2014, file:///C:/Users/USER/Downloads/Artists%20-%20Indigenous%20(G082v07)%20FINAL.pdf in http://www.copyright.org.au/