Recently I caught one of the BBC’s more interesting TV shows, Fake or Fortune. Hosted by Fiona Bruce of Antiques Roadshow fame, it traced the provenance of a possible missing Impressionist masterpiece.

The experts flew around Europe hunting down the painting’s paper label, and even found an old sales document. They found significant parallel artworks and agreed that the landscape was indeed a site that had previously been painted by the master artist. Despite forensic evidence providing a probable period dating, and acknowledgement of a similar brush technique to the master’s, the quest foundered.

The final “learned authority” for authenticating the hand of Monet, the Wildenstein Institute, declined to give it the nod for its Catalogue Raisonne; thus the work was damned as a fake to rest in obscurity in the English stately home in which it was found.

It is hard to find such ultimate authorities, or artists’ estate foundations in Australia; even rarer for Indigenous artists. Usually such arrangements originate in the legalities surrounding an estate or the family, with known legal advisers and art professionals brought in to assist. And in International art they seem only to be set up for artists whose works fetch huge prices…think Rembrandt (judged by committee of 6 experts), Matisse, and many of the Impressionists (the aforementioned Wildensteins), Picasso (the family with others) and so on.

Here in Australia we do have artists’ widows, partners and executors – Wendy Whiteley, Lyn Williams, the late Margaret Tuckson working with Watters Gallery, come to mind. Their word is gospel. But as Indigenous equivalents backed by Wills are very few, establishing safe imprimatur for an artwork as genuine work by the named painter has not been common without the agreement of expert curators.

Until recently, for art purchased from Community Art Centres, a few letters and numbers inked on the back of the canvas linked to an art centre certificate has always been sufficient to allocate authorship. And in the case of the original desert art company, Papunya Tula Artists (PTA), the numerical system and books kept over 45 years has meant a work’s PTA provenance provided prime security for collectors. The artists themselves are mobile across the country, often spending long periods for health reasons in towns like Alice or Darwin where they paint – and their paintings, their remuneration and the ethics of dealers vary in each situation.

So, after endless inquiries and schemes proposed by differing vested interests, we have a set of Government initiatives. As well as a 5% Resale Royalty to artists for works (over $1000) resold, there is an official code – the Indigenous Art Code (IartC). Dealer adherence to the values therein is meant to ensure authenticity, and a certificate bearing the Code logo can be issued to purchasers by each dealer who joins. You have to be quite a forensic researcher to uncover the trajectory of many Aboriginal artworks, and the IartC is designed to help. For art bought since the Code’s commencement in 2010, trouble awaits the unwary, I-know-what-I-like punter who purchased hastily if they try to resell through a reputable dealer or auction house.

I am often led to ruminate on my own vast accumulations of Indigenous gifts and exchanges, ceremonial feathers, paintings, pots, found objects of significance and original papers. Would these fall in or out of the web of entrapment now set up to trace the artist and successive sales of their works under the IartC? Mostly for the top-tier auction houses, I would need authentication to prove what they were and how I got them. If I proposed acquisition by a Museum, the question may be asked “ how do we know you own these? Or that they are what you say they are?

As probably the very first person to work professionally in the field, and having helped communities set up the first Aboriginal Art Centres (Papunya Tula, Yirrkala and Maningrida for a start), I guess I would have to rely on telling my story. I may have kept an old bedraggled label or two as well. But as my life was never that of a pristine contemporary art collector; kids, Aboriginal families from afar, pets and lots of life action have meant the objects that fill my rooms are just fondly kept, beautiful handmade things which to me and the rest of the family signify personal history.

Paintings were maps – places I went with their owners. Paintings were mnemonic codes to remember. Cross hatching colours and sequences marked a particular artist or clan. Many mark moments of change – the earliest prints, first stumbling into ceramics and so on. In those eras we developed an eye, knew the hand, understood the teaching of the master painter of his coded meanings “ the type of ‘first provenance’ approved by Prof Robyn Sloggett, and called ‘expert opinion’ today. There are many experts across the country, past art advisers, art centre managers and other professionals who have worked on Country in the various Indigenous worlds (note plural). And not least the artists’ clans and families. Well-known artists who may be deceased deserve the best catalogue raisonnes that can be done “ rare dealers have compiled these.

To return to the current regulatory dilemnas, and the mobility of artists…the IartC now sets a standard for commercial interaction across the country. It tries to correct the unethical behaviour of dealers – as long as they are members. Artists are advised not to accept bad practices; the Code spells these out – no alcohol or drugs as payment, and making sure of a fairness in price. Well, that’s the ideal. But with substance addiction growing and the scourge of alcohol abuse everywhere, particularly in Alice Springs and Darwin, paintings remain traded goods. The Code’s particular benefit is claimed as the establishment of ethical trade in the industry.

Resale Royalties is also confused with IartC “ the enforceable system run by the Copyright Agency. It too relies on dealers playing ball and reporting all re-sales as they occur. The Copyright Agency should be able to assist an artist certainly to trace sales not reported – if the information is kept. Most dealers claim that Resale Royalty is harming trade, especially as the tithe exists even if the work is selling at a loss.

The counter argument is it doesn’t seem to affect the art industry in the many countries overseas where the system exists. In light of the known effects of the GFC meltdown on art sales, and, more recently, the withdrawal of self-managed super funds from art collecting due to taxation changes, it’s impossible to be certain of a single cause. For the future though, the trail of provenance should be a valuable resource. And for the high-priced, collectable (and mostly deceased) Aboriginal artists, Resale Royalties can be a boon for their families, particularly if a Will exists – as it does for Rover Thomas, but not for Emily Kngwarreye “ the two most popular and successful artists at auction. The copyright for Albert Namatjira is held by a dealer.

Some Indigenous artists rightly point out that despite small returns, Resale Royalty is an important moral rights recognition – and as such a source of pride.

I once wrote about how painters of traditional bark works from land based communities have believe they have a continuing ownership of the work, or at least the painted design long after its sale. In the old days, they expected to benefit from a work’s further sales too. To illustrate this, I recalled buying a bark painting from Wandjuk Marika in Sydney – he had brought it down for me during the first Land Rights Case. Some 10 years later he came brusquely into my office and grabbed it off the wall, headed out the door and handed it to the person in the car that had brought him. I listened to his excited voice as he divided the money on return. Yucka worry – half for you and half for me! He had executed a resale and extracted a suitable ‘royalty’ along traditional lines. He certainly regarded the work as still ˜His’.

I was one of a few experts who assisted the early founding efforts of Peter Banki in the Copyright Agency to fight against blatant fraudulent use of Aboriginal copyright in fake paintings, carpets and furnishings. Wandjuk had been the instigator of this body. These were the days when we tried to understand provenance and copyright from an Indigenous perspective. European law had its codes, but here we had other thinking altogether in which, despite the sale of an art work, the artist under no circumstances felt they had sold rights to the design embedded in their culture and their being. In their Law, breaches of what we loosely called copyright, could result in death – certainly retribution. And there have been landmark cases involving group-owned work too – the Morning Star theme for a start.

As it stands, the IartC cannot offer any punitive legal action at all – apart from expulsion from membership. It probably has no teeth, and would like to rely on something unattainable – compulsory adherence for all dealers in Indigenous art. But maybe the artists don’t want to be put into a category like that – doesn’t racism, albeit positive discrimination, come into this? Nor does the Code have the power to force a dealer to validate the artist’s word that they are indeed the artist.

The IartC is currently rethinking its strategy to be of more assistance to art purchasers. According to new CEO, Gabrielle Sullivan, large changes will probably be made – even a review of current members is not off the radar.

I am left with a nostalgic hankering to hear the views of the type of experts who were once relied on – past art advisers, anthropologists, community leaders, linguists, and art curators of renown. If the dealers want to agree to monitor themselves, will it really result in any effective controls at all?

This article was written by Jennifer Isaacs AM for the AAD. This interview conducted by Jeremy Eccles with Prof Robyn Sloggett, Director of the Centre for Cultural Materials Conservation, forms part of this piece.

About
Jennifer Isaacs AM is a prominent Australian writer, art consultant and independent curator.

After gaining a qualification in anthropology, Jennifer joined the Australia Council in the late 1960s, and has been involved with Aboriginal art since. Her closest connections are with the Rirratjingu of Eastern Arnhemland and the Thanaquith of Cape York – both of whom adopted her and her family.

Jennifer has authored seminal books on Aboriginal art, religion, plant use, food, medicine and oral history – a selection of which can be found here.

In 2003 Jennifer was made a Member of the Order of Australia in recognition of her work promoting Aboriginal culture and assisting Aboriginal artists.