Red Sand Art Gallery sues journalists who accuse them of defrauding indigenous artists

In mid July in the massive modernist Supreme Court in Darwin, a frail Aboriginal man with a shock of grizzled white hair and beard took the witness stand to give evidence in a case that goes to the heart of alleged “carpet-bagging”-dealers exploiting indigenous artists to make a profit-in the country’s booming indigenous art trade.

Tommy Watson, who only began painting five years ago, is one of the new stars of the Aboriginal art world; his 2006 work Waltitjatta sold for A$240,000 ($197,160) at a sale in May held by Lawson Menzies auctioneers in Sydney-an ­auction that also saw the first Aboriginal painting break the A$1m ($840,000) price barrier, the late Emily Kame Kngwarreye’s Earth’s Creation.

Watson is also one of eight indigenous artists from Australia whose work is included in the Musée du Quai Branly, the new museum in Paris dedicated to the arts and civilisations of Africa, Asia, Oceania and the Americas.

The case has been brought to the Northern Territory Supreme Court by Red Sand Art Gallery and its proprietors Peter and Nathan King, who are seeking damages for alleged defamation in two magazine articles.

According to their counsel, Paul Heyward-Smith QC, the articles invited ­readers to consider them as “carpet-baggers” exploiting Watson. The defendants are Alison Harper, a former director of what was then Phillips Fine Art in Australia, who publishes the quarterly Australian Art Market Report, and journalist Jeremy Eccles, who wrote two articles in Harper’s magazine in late 2005 and early 2006.

The defendants claim truth, fair comment and qualified privilege.

Tommy Watson was appearing as a witness for the defendants. Born around 1935 in the desert of central Australia, Watson cannot read or write, and speaks only a smattering of English.

He moves between Irrunytya, a small community of 150 people described as “one of the most impoverished places on earth” and the town of Alice Springs, a day’s drive away.

Speaking through an interpreter in his native Pitjantjatjara language, Watson told the court of his dealings with the Red Sand Art Gallery in Alice Springs in 2005 when his paintings started attracting attention from collectors.

“I brought a lot of paintings in and I gave [them] to some mob and they didn’t pay me,” he said.
Watson supplied the gallery with 41 paintings over four months, but how much money changed hands and how it was distributed is still to be established.

Legal searches found that Watson’s niece had received A$61,000 ($50,100) in cash and second-hand cars on his behalf, and the gallery later showed the court receipts showing that it had paid a further A$11,000 ($9,200) for used vehicles.

At the time his paintings were selling for over A$30,000 ($24,650) each.

The gallery began ­placing the works with auction houses in Sydney and Melbourne; to date they have realised A$347,300 ($285,300) for 20 works sold so far and are likely to make around A$844,700 ($693,920) when all are auctioned, according to Adrian Newstead, head of indigenous art at Lawson Menzies.

The Senate investigation
The hearings in Darwin came just as the Australian Senate’s standing committee dealing with the arts handed down a landmark report after a year of hearings on the state of indigenous art, in which accusations of widespread “carpet-­bagging” figured largely.

The Senate report surveyed an art movement involving as many as 6,000 indigenous artists working in over 80 remote communities spread across Northern Australia.

They generate between A$400m and $500m ($328m-$411m) in sales a year, although the majority of this would be categorised as tourist or ethnographic art rather than the fine art capturing attention among collectors.The report found that although there is currently an annual increase in sales of 40% to 50%, the number of artists has remained steady.

This means either that artists are getting more for their work, obviously the case for some, or that money is going to other art market participants-raising “the question of whether artists are getting a fair share of the growing value of their works.

The increasing criticism of ‘carpet-baggers’, scrutiny of the ­secondary market, and growing calls for a resale royalty (droit de suite) scheme, all may be ­symptoms of this concern.”
The committee also noted that some cheaper-end “Aboriginal” works were being mass produced by backpackers or imported from Chinese factories.

Indigenous art derives from love for a particular piece of “country”, the Senate inquiry was told by Isabelle de Beaumont, who buys paintings from Aboriginal communities for European private ­collectors and institutions.

“You take that away and the art loses its roots as well as the specificity and power that captures so much international attention and acclaim,” she testified.

Sometimes particular images and styles are vested in communities and handed from custodian to custodian in perpetuity, she added-a property not recognised by Australian copyright law.

“Aboriginal” dots, lines and stylised figures are freely used to decorate products from clothes to buildings and airliners.

The Senate report recommends a two-year ­period for the Aboriginal art industry to put a code of self-regulation into practice, otherwise a ­mandatory regime under the Trade Practices Act and policed by the Australian Competition and Consumer Commission could be considered.

But the committee balked at recommendations that Australia introduce a resale royalty system to ­ameliorate the exploitation of Aboriginal artists.

So far, the majority from the ruling Liberal-National parties have opposed the idea on the grounds that it “would not help most artists”.

However, the Labor party has just announced that it will introduce a resale royalty scheme, if it wins elections at the end of the year-as polls currently suggest it will.

“This [is] particularly pertinent to indigenous artists,” said Tamara Winikoff, of the National Association for the Visual Arts.

“The value of the work rises so sharply in their own lifetimes as they are resold, and they don’t get anything from that.”

However, there are also issues that Aboriginal artists need to address.

The market has been beset with forgeries and there are cases where famous artists have only a loose creative input into works, which have been executed by family members under their name.

The committee also cited an attempt late last year in Melbourne to pass off four forged paintings by artist Rover Thomas with leading auction houses at total estimates of A$330,000 ($271,100).
So far, efforts to capture more of the sales value for artists and establish good practice regarding provenance have come through the establishment of community art centres, pioneered by the famous Papunya Tula artists’ cooperative in a community 240km north-west of Alice Springs.

It is where the now thriving Aboriginal art movement had its start in 1971 when schoolteacher Geoffrey Bardon asked some local men to paint a mural on a schoolhouse wall.

A network of centres provide information, and handles sales to dealers on behalf of member artists.

The Warlayirti Artists cooperative at Balgo, in the Kimberley region of Western Australia, returns 60% of its A$2.1m ($1.7m) annual sales to 400 resident painters.

“The centre,” reported the committee, “is a place where artists can congregate, socialise and generally escape from the often ­difficult conditions of community life.”
But if a major figure can be lured away from the community art centre by a gallery, the profit margin can be immense.

The practice involves a dealer-sometimes an amateur opportunist-­persuading an Aboriginal artist to sell recent works for quick payment.

In the Darwin court case, Red Sand is arguing that Watson had left the Irrunytya arts centre of his own accord before making contact with the gallery in Alice Springs, and that at the time he was ­virtually unknown as an artist.

Consigning freshly-painted works to Sydney’s Shapiro Auctioneers (where one fetched A$36,000 or $29,574 as against estimates of A$12,000 to A$18,000) was a way of establishing market value, the gallery says.

The defendants’ counsel, Francis Douglas QC, argued that Watson was an old man from a tribe which only recently came into contact with white Australia, and had no independent legal advice on his contract with Red Sand.

“He is a man who in no way, shape or form would be able to bargain on equal terms with men such as the Kings,” Mr Douglas said.

“He can’t speak English, he can’t read, he can’t count.

I venture to suggest that he possibly has no conception of money in the way in which we Westerners understand it.”

Another witness, Adrian Newstead, head of indigenous art at Lawson Menzies, defended his remark quoted in one article that it had been “unseemly” for auctioneers Shapiro to accept freshly-painted works directly into the secondary market, but noted that in current boom conditions auction houses were accepting more recent works.

He also noted that some of the biggest names in Aboriginal art had worked outside the art centres.

“But to go out and seek them, to go into a ­community and try and coerce them away from the art centre, is another thing altogether,” he said, ­citing the late Clifford Possum who once claimed to have been locked up at gunpoint in Adelaide to complete paintings.

He added that Aboriginal artists often thought little of the “career development” offered by ethical, qualified galleries and dealers, opting for ready cash and becoming “free agents” who used the industry as much as it used them.”Artists leave their communities constantly, they go on the road,” Mr Newstead said, adding: “They talk about Aboriginal art as Toyota Dreaming…if most Aboriginal artists were asked, they’d want to get a Toyota so they could be nomads again.”

The case resumes on 12 November.