When Maynard Johnny Jr. stepped onto Pender Street in downtown Vancouver for a bite to eat this summer, something unusual caught his eye: a hummingbird tattooed on the back of a woman’s shoulder. Not just any hummingbird; this one was designed in the Coast Salish styles of crescents, trigons and ovals. This one was his design.

And it had been stolen.

The Coast Salish painter says he approached the woman. Turns out she was a tourist from Arkansas, who had bought something with Johnny Jr.’s hummingbird on it, loved it and had it replicated for her tattoo. That the image could have been stolen was something she hadn’t even considered.

“You should have asked me for permission,” he says he told her. “I just want you to understand that this is my art. This belongs to me.”

The two would amicably part ways near the epicentre of Vancouver’s souvenir hotspots of Gastown and Chinatown, where mini plastic totem poles, dream-catchers and carved masks line window sills and store shelves — many appropriated for profit and created from designs taken without permission.

Why knockoff Indigenous art is harmful

Inauthentic Indigenous art is being sold across Canada, says Jay Soule an Indigenous artist from the Chippewas of the Thames First Nation.

He believes most of what’s sold in gift shops and even in galleries is knockoff Indigenous art, and he doesn’t have to go far to find evidence of this in Toronto. A few blocks from his shop, Chippewar Nation on Queen Street West, “you can see all the knockoff stuff” being sold at cheaper prices than original art, he says.

Indigenous knockoffs have also been found across the country in Vancouver. In 2010, a study commissioned by the Aboriginal Tourism Association of British Columbia found that 88 per cent of small Indigenous-themed souvenirs sold in Vancouver, like keychains, stickers and magnets, were created and sold with no participation from Indigenous artists at all.

Anthropologist Solen Roth was the lead researcher in that report. Even as she came to realize that much of the ‘Indigenous’ art being sold in Vancouver was not actually made by Indigenous artists, she says the lack of clear product labelling often made it hard to distinguish between authentic and less authentic pieces for sale.

“If I hadn’t done a PhD dissertation on the topic,” she says, “I would have been at a loss to distinguish the product on the shelves in the same store — in between something that was made by an Indigenous artist; something that had been done by a company that may or may not be working with an artist; and complete knockoffs.”

Ten years later, now living in Montreal, Roth says the problem persists. “The products that are on the shelves, a lot of them in Montreal — probably even more so than in Vancouver — are not made by Indigenous people,” she says.

The frustration of seeing his fellow artists having to compete with inauthentic Indigenous art, often manufactured for less at lower production costs overseas, led Soule to help launch a national awareness campaign in February 2018.

Reclaim Indigenous Art is calling on consumers, gallery owners and the government to take action against knockoff art. “We see a direct link between the importation of internationally made ‘Indigenous’ items, such as dream-catchers, masks, totems, statues, moccasins, images and other objects, and the devaluation of authentic, Indigenous art,” the campaign states on its website.

“I see all my friends and peers out there trying to scratch a living competing with the knockoff market,” Soule says. “I don’t really care so much if it’s someone who just wants to do it because they appreciate it. The minute, though, they put a price tag on it and they start selling it, that directly hurts an Indigenous artist who’s trying to make a living.”

The campaign urges everyone to be more conscious of what they buy and sell, and to avoid appropriating Indigenous artwork and culture without consent.

“Cultural appropriation is when one person from one culture takes culturally distinct items, aesthetics or spiritual practices — and in this case artwork — from another culture and mimics it,” the campaign explains. “They adopt it as their own without consent, permission or any cultural relationship to the object or practice, in order to make money or just because they admire it.”

When non-Indigenous people create and sell Indigenous-themed art it’s not the same as being inspired by Picasso, Johnny Jr. says.

The problem with appropriating Indigenous art can only be understood in the context of the damage done to Indigenous people in Canada up to this point, he explains. Residential schools and related government policies explicitly tried to wipe out Indigenous culture. “The one thing we kept alive through everything, through first contact, colonialism, residential school, the potlatch ban” is our art, he says.

“They took our language. They took our culture away. And this is the one thing we are able to hold onto — and now you want to take that too?”

But Indigenous people are speaking up and looking for change, Johnny Jr. says. “These things are now being brought to light because we’re allowed to have a voice now and say, ‘Hey, you can’t do that anymore, like that’s not right. That belongs to a very sacred part of our traditions.”

Australia is grappling with fake art too

Australia is now conducting a national inquiry into the sale of inauthentic Aboriginal and Torres Strait Islander art, spurred by mounting pressure from the Aboriginal and art communities and research estimating that 80 per cent of the products available in shops there are inauthentic and contributing to a multimillion dollar market.

“We were finding all these fake products,” says Gabrielle Sullivan, the CEO of Indigenous Art Code, which spent six months investigating souvenirs shops and galleries in various cities and tourist destinations across Australia.

The Indigenous Art Code was created to develop standards for fair and ethical conduct between artists and dealers. As its research progressed, Sullivan says people repeatedly asked her what the group was doing about “fake art” or art that was being misrepresented as Indigenous. So Sullivan teamed up with the Arts Law Centre of Australia and Copyright Agency|Viscopy — and the first thing she did was go shopping.

Not only did she find fake art, but shopkeepers were also sharing misinformation about Indigenous culture, she alleges.

“They’d be saying things like, ‘That’s a traditional rainmaking instrument from North Queensland,’” she says. “There’s no traditional rainmaking instrument from North Queensland. It was a piece of bamboo from Indonesia with some seeds in it that made the noise.”

Shops would also have boomerangs with the words “Australia handmade” and “Aboriginal” on them, she says, which could mislead a customer into thinking it was made by an Indigenous artist.

Sullivan launched an awareness campaign to share the group’s findings, printing posters, setting up information stands and calling on the public to write to the government. After the prime minister received 1,000 individualized, handwritten postcards, Sullivan says, the Australian government announced a parliamentary inquiry into inauthentic Aboriginal art in 2017.

So far the inquiry has received more than 160 submissions from communities across Australia, and is expected to release a report for Parliament with recommendations in the next few weeks or early in 2019.

The issue is getting more and more attention. A private member’s bill tried to make it illegal to sell fake art (though it never reached a final reading). And in October a federal court found a company misled consumers — and breached Australian Consumer Law — when it sold thousands of inauthentic objects marketed as Indigenous-made.

While the ruling could discourage other businesses from selling fake art, Sullivan worries it could also just encourage businesses to find ways around a law that’s meant to protect consumers from false advertising — not Indigenous culture from misrepresentation.

“There’s a mechanism for people that exists for stopping misleading and deceptive conduct,” she says; “that law hasn’t been drafted with the recognition of the right of Indigenous people.”

Copyright, trademark and Indigenous art in Canada

Jay Soule says he hasn’t heard anything from the federal government so far in reaction to his Reclaiming Indigenous Art campaign. But Parliament’s standing committee on Industry, Science and Technology is now reviewing the country’s copyright law (as it’s supposed to every five years) and this time, Indigenous artists were invited to share their perspectives.

Lou-ann Neel, a Kwakwaka’wakw artist, spoke to the committee “from the heart as an artist” about the challenges of cultural appropriation she’s seen in her 30 years in the industry.

“Our artists continue to operate daily at under-poverty levels,” she told the committee on Oct. 31, 2018.

“We do not see the proceeds coming back to our communities. We don’t see royalties. Permissions have not been granted for the use of many of our designs in the first place.”

Dan Ruimy, the MP for Pitt Meadows-Maple Ridge, B.C. who is chairing the committee, says its members are grappling with lots of different questions, including whether copyright law is the best tool to address the challenges facing Indigenous artists.

“We have over 600 First Nations. So how does that come together? And is it, again, is it a copyright issue? Or is it an enforcement issue? When we look at piracy, for example, is the problem copyright or is the problem enforcement?”

The committee is still in the information-gathering stage, he says, and is now hearing from lawyers and academics before it plans to present a draft report with recommendations by April 2019.

While the committee continues to sift through its list of questions, lawyer Denise Brunsdon says existing trademark, copyright and counterfeit laws could be used to protect Indigenous communities against inauthentic art right now.

“I think it’s important that we be vigilant about the fact that, as respect for and appreciation for Indigenous tradition and culture grows, so will the market for those inspired or original inauthentic items,” she says.

“So it’s important that we pay tribute to Indigenous communities, but ensure that they’re actually benefiting,” she continues, “and that it’s not third-party, profit-based entities without any connection to those Indigenous communities profiting.”

Some Indigenous peoples are already using existing trademark laws to protect their art. The Inuit Art Foundation (IAF) uses a trademark design of a tiny igloo on authentic products to protect Inuit art from counterfeits. And the Cowichan Tribes on Vancouver Island, known for their Cowichan Sweaters, owns several trademarks for names like “Cowichan,” and “Genuine Cowichan” but not for the sweaters’ actual style or design. The issue made headlines during the 2010 Vancouver Olympics when the Hudson Bay Company was accused of cultural appropriation for selling Cowichan sweaters as part of its official Olympic gear.

But copyright and trademark laws only scratch the surface of the issue, says Gabrielle Sullivan, as she reflects on the legal mechanisms available in Australia. The issue isn’t really about copyright, she says.

“If it was a copyright infringement, we’ve got a mechanism to deal with that. They’re not actually copying anything. They’re misappropriating and taking bits and pieces and moshing them all together and coming up with their own designs.”

‘We need to create solutions,’ says Kwakwaka’wakw artist

Some artists are finding ways beyond existing laws to protect their own work through labelling systems and awareness campaigns. Lou-ann Neel helped launch Authentic Indigenous in 2014, a labelling campaign that would show whether products were made by or in collaboration with Indigenous artists.

She sees the campaign as part of a larger solution to the problem of the “disproportionate number of artists who are being ripped off and being taken advantage of through really unfair business practices.”

But the campaign didn’t get enough funding from private sector or government to continue, and had to be put on pause.

“It’s so disheartening because you know we have all these wonderful solutions that have been waiting to be realized and implemented for years, and we just haven’t been able to get the funding support we need to do them,” she says.

Despite the setback, she’s still working to find ways to curb cultural appropriation. She’s meeting with artists, activists and advocates to discuss how to bring more Indigenous solutions to the forefront and get the funding they need to be successful.

One idea she’s proposing to government is a national Indigenous arts service and advocacy organization that would be a voice for Indigenous artists.

“People take our art because they don’t know any different, and they don’t know any different because we’re not actively and proactively informing Canadian citizens about whether it’s appropriate to take designs,” she told the standing committee in October.

“We need to create solutions that are going to enable us to take back our proper roles and responsibilities with respect to our art, and continue the tradition into the future.”

This piece was edited by Robin Perelle, with files from Zachary Kershman. Sign up here for our Urban Nation newsletter.