Stopping the Trade in Fake Indigenous Art: Following in the Footsteps of Lucinda Turner

The lamented passing of artist and activist Lucinda Turner in Vancouver in early July reminded many of the struggle she engaged in to protect Pacific Northwest Coast Indigenous artforms from counterfeiting and copyright infringement. Turner, a non-Indigenous artist who worked for many years with Nisga’a master sculptor and carver Norman Tait, took up the cause of fighting to protect Indigenous, especially Pacific Northwest, art from blatant copying, plagiarism, counterfeiting and passing off after Tait’s death in 2016. Many of the unauthorized reproductions are produced in Asia, with large numbers of the carvings coming from Indonesia, being executed in teak or other wood not native to the Northwest Coast. Others are copies made closer to home, usually by non-native artists.

To combat the trade in fakes, Turner started the Facebook group Fraudulent Native Art Exposed (FNAE), in which she catalogued literally thousands of knock offs of native art. The site includes a registry of authentic native artists as well as a model DMCA takedown letter. (For those not familiar, the DMCA is US legislation that allows those whose copyright has been infringed to submit letters to internet platforms in the US requiring them to remove infringing materials from their site). Today, the group continues as a discussion forum. The topics are interesting, ranging from outing of retail outlets selling fake Northwest Coast art to discussions around cultural appropriation and who can claim native ancestry.

In 2019 Turner stepped up her campaign, drafting an open letter to the Canadian government. In it she called for introduction of legislation and policies to uphold and protect Indigenous intellectual property and copyright through stricter laws and enforcement. Specifically she put forth five recommendations;

1. Clearer identification to make it easier for a buyer to determine if a work is authentic or not. Institute for Northwest Coast Indigenous artists a system similar to the Canadian “Igloo Tag Trademark” or Alaskan “Silver Hand” that protects Inuit and Alaska Native artists from fraud, cultural appropriation, and theft, by distinguishing authentic Inuit and Alaska Native works from those using Arctic imagery;

• The introduction of an Indigenous Artists Registry using blockchain technology to enable a direct link to an artist’s portfolio and biography, providing artists with a place to document designs, control ownership, establish provenance, and track works as they are sold;

• Criminalize and enforce laws against fraudulent acts of purporting to donate proceeds or parts of proceeds to Indigenous communities or associations (fundraising for Indigenous causes using Indigenous images without authorization);

• Encourage the sale of Indigenous art by eliminating Federal and Provincial sales taxes on these items while retaining (or even increasing) taxes on “Native-Inspired” pieces;

• Distribution of information pamphlets on where and how to buy authentic Indigenous art in places such as high-traffic tourist areas to help teach consumers how to identify authentic art, and what questions to ask such as: where the product was created, the artist’s name and First Nation affiliation, and whether or not the artist receives royalties from the sale.

These recommendations are a combination of legal action and raising consumer awareness through information and marketing. As in many things, price will usually be the first indicator of whether or not an article is genuine but is not always determinative, especially when well-executed knock-offs are marketed at similar prices to authentic works.

Despite Turner’s call to action, and despite recognition by two Parliamentary committees in 2019 (the Shifting Paradigms report of the Heritage Committee and the INDU Committee Report from the Committee on Industry, Science and Technology) of the need to take special measures to protect Indigenous art, almost nothing has been done to date. This is partly due to delays in revising the Copyright Act (required every five years, with the last revision being in 2012) because of the interruption of two elections (in 2019 and 2021), as well as the government’s focus on other priorities including combatting COVID.

The Minister for Canadian Heritage, the head of one of two government departments responsible for copyright, has been preoccupied with other legislation, such as the Online Streaming Act, Online News Act and legislation dealing with online harms. The lead department responsible, Innovation, Science and Economic Development, has had many other issues to deal with and copyright has been put on the back burner. That may be changing now the Trudeau government has secured a likely mandate to govern until 2025 through a confidence and supply agreement with the opposition New Democratic Party. There is now sufficient time to bring forth proposed changes, conduct public consultation and hopefully get changes through Parliament before another election intervenes and cuts short the legislative process.

With copyright review getting underway within the bureaucracy, calls for more action to stop the trade in fake Indigenous art are increasing. Among those leading the charge is Senator Patricia Bovey, independent Senator from Manitoba and the first and only art historian to sit in the Senate. She served as Director of the Winnipeg Art Gallery (1999-2004) and the Art Gallery of Greater Victoria (1980-1999), has been a professor of Art History, President of the Canadian Art Museum Directors Organization for three years and served on the Board of the National Gallery of Canada. It’s fair to say she knows her stuff, and that she is concerned. While an independent Senator can only do so much in terms of bringing forth legislation, she can encourage, prod and circulate ideas. Among these is the creation of a mechanism or fund to track down companies fabricating Indigenous works or failing to pay royalties. Another would be to strengthen Canada’s “soft border” against trade in fakes. Some of these measures could be addressed by the Copyright Act; others will require legislation in other areas.

As I have written elsewhere, “Can Copyright Law Protect Indigenous Culture? If Not, What is the Answer?”, copyright is not always a perfect fit when it comes to protecting Indigenous Cultural Expression (ICE) which may be more community than individually based and often relies more on stewardship than ownership. But there are still contemporary Indigenous artists who are facing direct consequences now from the growing trade in fakes, facilitated by sales through the internet. Action is needed. A key element is to be able to easily distinguish between real and fake Indigenous art. Lucinda Turner’s idea of making the genuine article free of sales tax would be one transparent way to indicate the difference, allowing law enforcement to take action against fraudulent efforts to pass off non-Indigenous works as genuine as doing so would be a violation of the tax code. Another suggestion is to bring in Canadian legislation that would mirror the US Indian Arts and Crafts Act of 1990 that prohibits the sale, or offer for sale, of any product that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian “tribe”. There are heavy penalties for violation of the law. In 2018 an owner of several Albuquerque, NM, jewellery stores was imprisoned and required to pay over $9000 in restitution for passing off Filipino-made jewellery as authentic Native American art.

However, the legislation is not necessarily a silver bullet. Apart from questions as to who qualifies as “Indian” under the Act (in the case of the US law it is a member of a federally or state recognized Indian tribe or an individual certified as an Indian artisan by a tribe), the law does not deal with “lookalike” art. As long as there is no false claim that the work is an Indian product, the law does not apply. In other words, non-Indian works taking inspiration from Indian designs, but not claiming to be Indian-made, are not targeted by the law. To close this loophole would be difficult because many non-Indigenous artists have drawn inspiration from native designs, eg. Hopi and Navaho geometric patterns. The most effective means may be to ask artists to be respectful of the cultural significance of works they are inspired by, but that still won’t stop mass marketing of cheap look-alikes for tourist consumption, such as totem poles, masks, jewellery, Inuit sculptures and so on.

If certain art forms are restricted to Indigenous practitioners in Canada, the question of who might qualify to produce them could be tricky since the term “Indigenous” includes members of First Nations reserves with status under the Indian Act, non-status people of Indigenous descent, Inuit and Metis, although “qualification” could no doubt be solved by some form of registry. There is also the question of regional origin within the Indigenous community. For example, should an Indigenous person from, say, the northern prairies be able to claim Indigenous status as a producer of Pacific Northwest Coast art?

But the most difficult question is how to handle clones of Indigenous art, such as elaborately and cheaply carved “copies” from places like Indonesia (where there are also master carvers very good at copying the work of others, in some cases commissioned by businesses in North America), and where there is technically no claim that the work is of Indigenous origin. While Indigenous artists in Canada would like to see those copies stopped at the border (training of border guards is another issue), as long as those “copies” are not exact replicas and not marketed as originals, it will be difficult to stop such trade. If fake art is being imported and passed off as the original, whether it is of Indigenous design or not, it should be stopped. However, if the works simply take inspiration from Indigenous, or non-Indigenous designs, as much as I sympathize with the artists of the original works, it is hard to design a law that will target the problem without causing some kind of collateral damage to trade. This is where a mark of authentication could come in handy. False labelling would be grounds for seizure of goods. Also, the threat of heavy fines and seizure of fake goods might provide some deterrence and ensure that imported artwork is clearly identified as such.

There is definitely a problem, although the solutions are not simple. While stopping or discouraging the trade in fakes is important, equally important is letting consumers know what is real and what is not. Price does not always provide the necessary distinction. The creation of an Indigenous Art Registry (that work has already begun) and the establishment of a mark of authenticity or a trademark would help consumers identify the provenance and bona fides of a product they want to buy. If I want to buy the real thing, I don’t mind paying a fair price for the genuine article but I really don’t want to pay a similar price for a knock off made elsewhere. That undermines the entire market.

It looks as if the work of Lucinda Turner will be carried forward by others, including Patricia Bovey. Some changes will likely be addressed through Copyright Act revisions. Others may come about as part of the ongoing Reconciliation efforts with Indigenous communities. Still others may come about as a result of tightening the border against the trade in fakes of all kinds. For example, the new NAFTA trade agreement (aka USMCA/CUSMA) requires that customs officials in Canada, Mexico and the US have “ex officio” powers to stop suspected counterfeit goods. “Ex-officio” means that customs officials can act on their own authority if they suspect that a shipment contains fakes, rather than having to wait for a rights-holder to bring a case. In other words, they can pro-actively interdict traffic in fakes rather than simply being reactive.

This is a complex file that involves Indigenous rights and culture, international trade, copyright and trademark, and consumer protection. This suggests that a coordinated approach across government is needed. Lucinda Turner was a leader in taking up this challenge. Others are following her example. I wish them success.

© Hugh Stephens, 2022. All Rights Reserved.