Episode 8.1: Desert Flower: Bibi Barba, Aboriginal Art Theft, and the IGC

Rachel Hsu: I’m Rachel Hsu. This is Dialectic. The United Nations talks a big talk. For the past twenty years, it’s tried to draft a form of IP protection that covers traditional, ancestral, indigenous knowledge and cultural property. The drafting body is called the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore, or the IGC. The group meets several times a year, hundreds of people sitting in near-silence as discussions commence over headsets and live translators. Major colonial countries including the United States, Canada, and the UK, are voting members. But most critical are the people without a vote at all, the people with the most at stake.

Bibi Barba: My name is Bibi Barba. I am a First Nations artist here in Australia. You know, I’ve been an artist for 35 years. Art is my life, but my passion is protecting it.

RH: I met Bibi in Geneva during IGC’s 46th session this spring, where she co-chaired the Indigenous Caucus. The Caucus is an advisory group of Indigenous people from around the globe. And each of them is here for a reason. Bibi has 60,000 years of reasons.

BB: My grandmother, she was very instrumental in me starting art because she said to me, “Go home, see your country to paint your country.” And being a Darambal woman and a Cammeraygal woman and a Yuin woman, I’m a salt water woman, but my grandmother being that elder and pretty much a life force in my life has given me the passion and energy to be an artist but also to tell a story, be a part of that visual literacy that Aboriginal people have been engaging with for thousands of years. So that really got me started – how do I capture my culture. And also, two, using that as a therapy for myself because I’ve obviously faced a lot of trauma in my life. I’ve lost children. So that was a way where I could be empowered myself and to be focused and to help where I can.

RH: Can you tell me a little about the Desert Flower series?

BB: Desert Flower was a piece I’d created 2009. And it was one of those pieces that – I just knew there was something special about it because of the story. My grandmother was telling me about a particular flower — water lilies out there in the desert in Queensland. Beautiful lilies that just grow and it’s sustenance and it feeds the ecosystem and it also feeds the Aboriginal people. And the women — the women uses the water lily for medicinal purposes, for health. As an artist I need to capture that story into a contemporary abstract kind of formation, and that was the birth of Desert Flower. One was yellow and the other one was a burnt orange. They are significant for me because those two particular pieces represent sunset on the past and the sunrise of the future because I’d come out of a divorce. So it’s just a beautiful way for me to go “Okay, breathe in, breathe out, and now you are a free woman!” So it was a really emotional connection to my culture and what my grandmother nurtured and passed down to me.

RH: Bibi gave me a print of one painting in the Desert Flower series, where each abstracted flower is painted in shades of lemon and golden, yolky yellow. Most of the flowers are rendered as curving three-sided shapes, each too organic to be a triangle. At least one four-sided shape is in there too. They interlock, white circular nodes marking where each floral trumpet meets its neighbor.

BB: The year after I created the piece, I had an exhibition and I had a collection of these new works. The gallery owner had scanned all of the artworks and then put them up on a website — which was full resolution images — on her website to promote the show. These images are so incredibly beautiful and yet so easy for people to just download because they were high resolution, which you should never do.

RH: I think I see where you’re going… can you tell us about Poland?

BB: Well, Poland was an incredible surprise. And the only reason I found out was because of my sister’s mobile phone, because that was a new kind of gadget back in the day and you can actually Google yourself. And that’s how I came across the Polish Hotel Eclipse in Domasław. And my work. This person in Poland had downloaded it. And in a little picture of a hotel room, and it was a different language, but I could read, “Inspired by Bibi Barba, Desert Flower.” I was absolutely shocked.

RH: The Hotel Eclipse is a boutique hotel in Domasław. It’s entire theme is… Bibi. On the first floor carpet, the two shades of yellow in Bibi’s painting are flattened into one tone, a watered-down but recognizable imitation of Bibi’s work. The trumpet-like shapes are structured into a repeating pattern, necessary for mass-production of items like rugs and wall panels. It is unmistakable.

BB: Each level had a different color. So the first level was yellow. The second level was the burnt orange. And the third level was gray which was a bit dreary. I was just totally bamboozled. You know, I was just shocked. Quite gutted, actually. I didn’t want to paint anymore because I feel like that people are just taking my work. I realized what this woman’s done is she’s just taken a beautiful painting of rich cultural value and turning it into a piece of carpet. So it was quite confronting, actually. And so I was very upset, so that’s when I realized then that I had to reach out to her, you know, just in a nice, easy-going manner, and said look, you have copied my work. Obviously, it’s a direct copy.

RH: The Polish interior designer, Ewa Smuga, said something like:

BB: Oh no, I redesigned it so it’s my work.

RH: Smuga claimed that Bibi’s designs were in the public domain and merely geometric. She said she wanted to elevate Aboriginal art to a new audience and that Bibi’s original work was ineligible for copyright protection.

BB: This is where the battle began, when I realized that I had to kind of understand what laws I had to fight in Poland, and when I learned that, I said “Okay, I’m going to go to Uni and study law.” Which I did! And um, I haven’t finished yet, but I’m still going! [laughs]

RH: One thing Bibi learned is that Poland is party to the Berne Convention, along with 180 other countries including Australia. This cross-border agreement means that Poland’s copyright protection theoretically recognizes Bibi’s rights as an artist. But she also had to exhaust her remedies in Polish court, an expensive and timely process. While most copyright regimes require some modicum of creativity, and you can defeat a copyright claim by showing the art is in the public domain, Bibi’s painting is distinctive enough to satisfy most threshold of originality tests. And the Berne convention extends coverage to, “every production in the literary, scientific and artistic domain, whatever the mode or form of its expression.” Ewa Smuga’s actions look like brazen copying. But they also fall into place in a massive extractive history of Indigenous art theft, exacerbated by narrow and few formal protections for cultural property outside of the Western IP system. Copyright may protect Bibi here, but it systemically and repeatedly fails Indigenous creators overall.

BB: In terms of cultural expressions, it’s untangible. These are stories that, under the existing Western copyright law, if you come and talk to me and you write it down and I tell you the story, well then the Western copyright system says “I cover you now because you’ve written it down and made it tangible. And now you have copyright over that information." That was the gap — that was the absolute profound misuse of culture in a big way. And that’s where we see here in Australia and I guess in all cultures around the world with the Indigenous Caucus, is that, no, no, no, no, no: the way we’ve kept our culture alive was through these culture expressions, through dance, music, painting, bark and so forth, and sand, and ceremonial values on body adornments. I mean these things, we took them for granted really because it was just normal for us to do that.

RH: That means that Indigenous people dragged into the Western IP system suddenly heard white people saying:

BB: “Oh no, but this law says I can do this,” and there’s nothing you can do about it because it’s a Western – Westernized viewpoint.

RH: Do you get the impression that the art theft happened to you because you’re Aboriginal? Because maybe Smuga thought there would be fewer protections for you?

BB: Oh absolutely. Absolutely. Categorically. And how I know that is that her response to me in the letter was saying that “I was doing you and your culture a favor.” I thought, you’re kidding me, right? Because my culture’s been here for 60,000+ years. How are you doing my culture a favor? You’re actually doing yourself a favor by making money off my culture and my creative process of expression of my grandmother’s story. It's just so ridiculous because she knows – she knew what she was doing, and she misled the hotel, and the hotel was like now we’re gonna back you.

RH: So, you took this case to Polish court, and that it’s been in limbo for years due to covid. And the hotel is still plastered with your work. I can imagine it’s the kind of slight you’d never want to see in person, but I understand you have seen it just a couple weeks ago?

BB: Well, I actually went over to Poland about five years ago when I was fifty, and I went there incognito with a blonde wig on. And no one knew who I was. So, at that point, I’d taken photos and so forth and I lost all the content. Hence why I went back there. I actually thought we might not be able to get in, but we were manifesting it, we thought, no, we own this, we’re just going to walk in. So we videoed the whole lot. That’s gonna be part of a documentary that’s going to be launched at the UN in September.

RH: Over the years, Bibi has done critical work with the UN in the Indigenous Caucus as the IGC drafts traditional knowledge protection. And she got familiar with the World Intellectual Property Organization, or WIPO, because of Smuga’s infringement.

BB: I rang them up at 3:00 in the morning one night, while it’s all happening, and I was like, what are you doing? What is your role? What is your purpose? How do you protect artists like myself?

RH: Bibi went from asking WIPO tough questions to leading tough discussions at WIPO as co-chair of the Indigenous Caucus.

BB: I’ve been on the panel, the indigenous panel, which has been incredible ‘cause it’s a platform, it’s a voice that’s also telling member states, “You’ve got to listen. We have to change these laws to protect culture.”

RH: Currently, member states are disputing whether to cover Indigenous Peoples or Indigenous Peoples and local communities. They’re discussing whether they’ll use databases, or if those will put vulnerable Indigenous art in appropriators’ hands. Some countries want binding protection, and some want the document to be a an aspirational declaration. Twenty years in, the document doesn’t feel close to an end. But where copyright and other traditional forms of Western IP protection have failed Indigenous artists repeatedly, Bibi has faith in the IGC to bridge that gap.

Would this have turned out differently if the IGC had a declaration in full force?

BB: Oh absolutely. Because every country would know then that there’s cultural protocols enforced in legislation. You know artists, non-Indigenous artists, would respect that. So when you’re doing things inspired — that “This artist, this Indigenous artist inspired me” — when you’ve been inspired by culture, by someone else’s culture, you still have to ask permission.

RH: So it would have turned out a little differently?

BB: I don’t think I would’ve had this problem at all.

RH: One element Bibi brought up is FPIC, which also comes up as an essential component of a prior document, the UN Declaration on the Rights of Indigenous Peoples.

BB: FPIC is free, prior, and informed consent. So whenever you want to have any kind of cultural element, seek the permission of the community. Elders in the community. I mean I still have to ask my mother permission for certain things. You must always ask for permission, It’s a handshake of, “Yes, I respect you, and you respect me.”

RH: When I sat in at IGC’s 46th session, the glacial pace of UN proceedings concerned me. As Bibi told me, we’re in a critical time for action, where if protections aren’t put in place soon, it will be too late.

BB: It is — it’s an incredible time for an international instrument to be created. Because cultures around the world, we are suffering. And a lot of our cultural knowledge holders, ‘cause of Covid, a lot of them have passed on. Knowledge is just so important and having these laws is the most important thing to protect it.

RH: The protection of knowledge is being facilitated by people on the ground, Indigenous people, medicine men, chiefs, elders, the cultural knowledge holders we may soon lose. That protection could be on the horizon. Or it could be a mirage the desert. Bibi, thank you so so much for speaking with me today.

BB: You take care. Thank you my dear.

RH: This episode of Dialectic was reported by Rachel Hsu and Andrew Nguyen. Music is from Podington Bear and the Free Music Archive. Dialectic is a project of the UCLA Law Review.
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Dialectic: Desert Flower: Bibi Barba, Aboriginal Art Theft, and the IGC, UCLA L. Rev. (Apr. 24, 2023), https://www.uclalawreview.org/?p=11023&preview=true.