In February this year the small US-based fashion house Rodarte unveiled its autumn collection that featured, in some small part, several images and motifs drawn from Australian Aboriginal art. The collection includes some lovely pieces that would have me looking more than twice if I saw them worn on the streets of Darwin …

Rodarte is run by sisters Kate and Laura Mulleavy, who have never been to Australia but who say the inspiration for their collection came — as reported by Farhana Nazir in myfashionlife — from “out of nowhere” acquired through research and photography.

This was all good up until Thursday of last week when Patty Huntington at Frockwriter reported on comments made to her by Australian lawyer and academic professor Megan Davis that Rodarte’s use of these images was an apparently “offensive” appropriation of Aboriginal art. Frockwriter’s piece created a minor but widespread stir over the weekend in the fashion blogosphere, particularly in the UK and the US.

In Australia, Jeremy Eccles at Aboriginal Art News was scathing of Davis’ comments, noting that:

“… Ms Davis has jumped to a whole raft of unjust conclusions here. Rodarte offered Frockwriter the following statement: ‘We deeply respect and admire the work of other artists. Through the appropriate channels, we licensed the Aboriginal artwork that influenced prints in our collection. As a result, the artists will share in proceeds of the pieces inspired by their work.'”

And there is the rub. Rodarte had licensed the images through the Aboriginal Artists Agency Limited, a non-profit organisation established in 1976 by the Australian government through the (then) Australian Council for the Arts.

For most of us this is no more than a minor spat that will soon fade into the ether from which it came. But for professor Davis the stakes are higher. She has been made to look like a goose — and she is fuming.

Davis has an extensive history as an academic and author. Her biography at the University of NSW law school website shows that Davis is, among other things:

“… a Professor of Law and Director of the Indigenous Law Centre, Faculty of Law. Megan is a UN expert member of the United Nations Permanent Forum on Indigenous Peoples and holds the portfolios of Administration of Justice, Gender and Women and Intellectual property and indigenous knowledge.

“In 2012 Megan was the Rapporteur of the UNPFII Expert Group Meeting on Violence Against Indigenous Women in New York.

“Megan is a Commissioner of the NSW Land and Environment Court.”

Professor Davis was reluctant to contribute any more fuel to the Rodarte “non-story”. It appears her comments were made in the context of a report that the Rodarte collection emerged “out of nowhere” with an understanding that publication of her comments would be subject to checking with Rodarte first and further with her if needed.

The premature publication of Davis’ comments and the resultant storm-in-a-fashionable-teacup was an unfortunate distraction from the more serious — and unaddressed — issues related to the legal protection of traditional cultural expressions.

“Traditional cultural expressions are fundamental to indigenous culture and heritage — the legal issues that arise from its use or misuse are so serious they are the current subject of treaty-making in international law,” Davis told Crikey. “It is a complex intellectual property framework and we must be alive to the ongoing legal and policy challenges that cultural convergence and collaboration brings.

Perhaps the best comment on the affair is from over at Jezebel, which noted that:

“It strikes us that Davis’ comments were fair, given that Rodarte was forthcoming about neither the fact that it licensed the prints, nor the individual artist’s name. That reticence leaves the unfortunate impression that while Rodarte was happy to pay to use another artist’s works, the brand was less keen to share the credit. A simple mention in the show notes might have avoided this whole thing — and led to fewer cringe-inducing fashion reviews erroneously crediting generic “Outback influences” (thanks, Robin Givhan — but this isn’t a steakhouse) as the inspiration for the collection.”

Anthony Wallis, director of the Aboriginal Artists Agency Limited — which issued the licences to Rodarte — reckons that more than a few points are being lost.

“We licensed a couple of works for the collection; in return the artists get a share of the sales. Pretty good? The real issue here is the right of individual indigenous artists to make a living from the original work,” he said.

“In defence of communal rights in cultural matters, there are many nations on this earth where there are no laws (or practices) that protect artists from exploitation and that’s where such ideas could be relevant. In Australia by contrast, indigenous artists benefit from a long history of protection of the individual creators and their work. Protection of ‘folklore’ discussions will continue ad infinitum in lofty fora.

“Rodarte didn’t have to pay but the weight of copyright law shared between the US and Australia (and its own ethics) made it necessary. So they paid.

“Also from a licensing point of view we were not having to agree to a large volume of product. The range was expensive, exclusive and probably won’t be seen beyond one fashion season, yet we created a new income stream for Central Australian artists direct from a family company in the US.”

Professor Davis is planning a public forum on legal and policy issues related to traditional cultural expressions at the University of NSW’s Indigenous Law Centre in the near future.