Mr Carroll was a celebrated painter from the APY Lands. Image used with permission from his family.(Supplied: Ernabella Arts)

Indigenous Australian art is celebrated globally. But who reaps the profits?

When an egg-blue canvas by the late artist Kunmanara Carroll set an artist’s record at a Sotheby’s auction in New York, dealers and collectors holding the Indigenous Australian’s works likely celebrated.

Back home in the central desert, the artist’s widow had mixed feelings.

Her family and their tiny Anangu community in the APY Lands would see none of the cash from the sale.

Indigenous Australians are advised that this story contains the images and names of people who have died.

“When I heard that [the painting] was sold overseas, it was not right,” Alison Milyika Carroll says.

“Someone sold it for big money that should be coming back to the artist.”

Mr and Mrs Carroll met in Ernabella Mission, traditionally known as Pukatja.(Supplied: Ernabella Arts)
The couple had five children together and share many more grandchildren.(Supplied: Ernabella Arts)
Pukatja community is in the APY Lands in central Australia.(ABC Alice Springs: Samantha Jonscher)

Mr Carroll’s family have given the ABC permission to publish his image. 

Ms Carroll and her softly-spoken late husband, whose name has been changed for cultural reasons, met at the Ernabella Mission, which is today known as Pukatja.

The couple had five children together. Ms Carroll trained as a health worker, while Mr Carroll worked as a community policeman for 20 years until his retirement in 2007.

He then took to painting in his late 50s, and his artistic career took off.

Mr Carroll painted this piece in 2017, after a joyful trip back to his father’s homeland, Ininti.

The late artist Kunmanara Carroll painted Ininti in 2017.(Sotheby’s/ABC News: Alistair Kroie)

Ininti was first sold through a private gallery to a collector in Perth for $8,600.

Two-thirds of that went back to Mr Carroll and his arts centre at Ernabella.

Five years later, Ininti wound up in the annual Indigenous Australian art auction held by Sotheby’s in New York.

Mr Carroll had passed away just one year earlier and, in a sad irony of the art market, his paintings were now fetching soaring prices.

At Sotheby’s, Ininti went for $US50,400 ($77,000) including the auction house’s fees.

Or almost nine times its original sale price.

A year later, another piece found its way to Sotheby’s annual sale in New York.

Mr Carroll painted this piece in 2019 after travelling to Walungurru (also known as Kintore) about 500 kilometres west of Alice Springs.

It tells the story of a rainbow snake travelling in search of a man who has transgressed Aboriginal cultural law.

Mr Carroll painted this work in 2019.(Sotheby’s/ABC News: Alistair Kroie)

Walungurru was originally sold through a gallery in the United States in 2020 for $6,400.

At a Sotheby’s sale in 2023, it set a new record for Mr Carroll’s work.

It went for $US127,000 ($192,000) including Sotheby’s fees.

Or 30 times its original sale price.

If these two paintings had sold at auction in Australia, Mr Carroll’s family in the APY Lands would have been entitled to some proceeds from the sales, as part of the country’s long-running resale royalty scheme. 

But, because the paintings were sold in New York, they saw nothing.

Alison Carroll says the soaring value of her late husband’s work should benefit her and their children.(ABC News: Xavier Martin)

“When they’re selling it for big money, that money belongs to the person who did the painting,” Ms Carroll says.

“My husband passed away but it still belongs to my kids, to me, my daughters, and son, and grandkids.

“They should think about that, and give that money to the family.”

Mr Carroll’s paintings are just two Australian works that have sold overseas.

While there are no definitive figures, estimates are that millions of dollars worth of art from Down Under is being sold offshore every year.

Overseas, it is not Brett Whiteley or Ben Quilty who dominate, but works by Indigenous Australians that shine brightest.

Emily Kame Kngwarreye’s Wild Yam 2 on display at Sotheby’s in London ahead of its Aboriginal Art Sale in 2015.(Getty Images: Peter Macdiarmid)
Emily Kame Kngwarreye’s Wild Yam 2 and David Banggal Mowaljarlai’s Munubunu on display at Sotheby’s in London ahead of its Aboriginal Art Sale in 2015.(Getty Images: Peter Macdiarmid)

Well-known buyers on the global stage include Hollywood actor Steve Martin, who is a big fan of the central desert art movement. 

Sotheby’s is a major seller through its annual Aboriginal Art auction in New York, the unofficial global headquarters of the art market.

Collectors spent almost $US3 million at last year’s auction, including on pieces by Sally Mirdidingkingathi, Juwarnda Gabori, Richard Bell, Johnny Warangkula Tjupurrula and Australia’s top-selling Indigenous artist by auction result figures, the late Emily Kame Kngwarreye.

Sotheby’s bid paddle held up at an art auction in the US in 2021.(Getty Images: Gabe Ginsberg)
People walking past the Sotheby’s building in New York City. November 4, 2022.(Reuters: Eduardo Munoz)
Art buyer holds a catalogue at Sotheby’s auction in 2007 in Sydney.(Getty Images Lisa Maree Williams)

Savvy collectors and dealers who sell paintings on the secondary global market benefit when an artist’s stock is on the rise. 

Meanwhile, Sotheby’s makes its money through seller’s commission.

The private company has an estimated value of $US3.7 billion, making it one of the world’s biggest auction houses.

How does the art royalties scheme work?

Sotheby’s didn’t always hold its Aboriginal art auctions in New York.

It once operated in the Australian market under a licensing arrangement, even locally auctioning off iconic pieces such as Brett Whiteley’s Opera House on behalf of its first owner, the airline Qantas, for $2.4 million plus a buyer’s premium of $400,000. 

Brett Whiteley’s work Opera House at Sotheby’s auction in Sydney in 2007.(AAP: Julian Smith)
An art buyer rests their hand on a catalogue at the Sotheby’s auction in Sydney in 2007.(Getty Images: Lisa Marie Williams)
Agents accept bids via phone at Sotheby’s auction in Sydney in 2007. Names unknown.(Getty Images: Lisa Maree Williams)

D’lan Davidson was Sotheby’s Australia head of Aboriginal Art back in 2010 when the Australian art market was faced with the introduction of resale royalties.

“Initially, there was great resentment in the market, without question,” he remembers.

“It was viewed as kind of an insidious tax.”

Historically, resale royalties are known as droit de suite, which is French for “right to follow”.

It was first proposed as a concept in Europe in the late 1800s in response to concerns that the art market was making huge profits off work often made by starving artists who were suffering during war. 

France has enforced it since 1920, while other parts of Europe implemented it in the early 2000s. 

In Australia, it was legislated in 2009 by the Labor government after years of debate about royalties and concerns about “carpet bagging”, where many Indigenous Australians had historically received very little for their paintings on the original sale.

Midnight Oil frontman turned politician Peter Garrett led the charge.

Peter Garrett fronting Midnight Oil in 1982.(ABC )
Peter Garrett talks during House of Representatives question time in 2013.(Getty Images: Stefan Postles)
Peter Garrett in 2024.(Australian Story: Tom Hancock)

The final scheme brought into play applies to all Australian artists, and is set at 5 per cent of an artwork’s resale value on the secondary market.

Then there is the fine print.

Royalties don’t apply to private sales, they only apply to art that sells at auction or through galleries for more than $1,000.

If work sells at auction, the 5 per cent applies on the hammer price, which is lower than the final sale price with commissions.

Estates can collect, but only if the artist has been dead for less than 70 years.

Finally, after concerns that the royalties would be a back-dated tax on already sold items, a royalty is not payable if the seller acquired the work before the scheme’s implementation in 2010.

And if that last bit is confusing, take this example of a painting by Ginger Riley Munduwalawala, which is about to go to auction in Melbourne.

Ginger Riley Munduwalawala gifted this piece to the Anglican Diocese of the Northern Territory in Darwin back in 1996.(ABC News: Alistair Kroie)

The now-deceased artist gifted Garimala to the Anglican Diocese of the Northern Territory in Darwin back in 1996.

Its sale at Deutscher and Hackett in March will be the first time it’s been re-sold since then.

Meaning, if the church does sell it for up to an expected $120,000, no royalty will legally need to be paid out to the artist’s estate.

In Australia, the law says the seller, buyer and dealer are all jointly responsible for paying the royalty.

However, in practice, many auction houses and dealers in Australia have policies of getting either sellers or buyers to pay the 5 per cent, either as an extra fee charged on top or as payment out of profits. 

Opposition to royalties continues

The royalties were mostly welcomed by art centres and artists, such as Blue Mountains-based landscape painter Warwick Fuller.

He maintains today that artists should share in the proceeds when their work increases in value.

“Even though 5 per cent is a token sum, I think it is fair and just,” he says.

Other supporters at the time included Aboriginal artist and activist, Richard Bell.

Richard Bell, You Can Go Now, Museum of Contemporary Art Australia, Sydney(supplied by MCA/Anna Kucera)
Richard Bell in 2018.(Photo: Savannah van der Niet, courtesy the artis and Milani Gallery Brisbane)
Installation view of Omega (Bell’s Theorem) (2013) by Richard Bell.(Supplied: Auckland Art Gallery Toi o Tāmaki/David St George)

Mr Bell says he still backs royalties today and reiterated the sentiment of his famed work Aboriginal Art – It’s a White Thing. 

“White people buy it. White people sell it. White people transport it,” he says.

“Aboriginal people just do it, and it leaves their communities.

“This little addition (of royalties) is very handy. Most Aboriginal artists come from some of the poorest communities in our country.”

Yet there was lots of opposition to royalties being brought in, with Mr Garrett taking a lot of the backlash. 

Some sections of the art market raised concerns that the royalties would put off buyers in Australia or even push the sale of artwork offshore.

Many were incensed that the royalties were brought into play just after the global financial crisis, as the art market was crashing.

There was still a lot of anger when the federal government reviewed the laws and called for public submissions in 2013.

One of the entities that made a submission was Sotheby’s Australia.

In its letter, it recommended that royalties should only be paid out if the artist was still living. It also called for a ceiling price to stop royalties being paid out that were close to the “average yearly income”, and argued for no royalties on loss-making sales.

Sotheby’s exited the Australian market in 2019. It declined to give its position on royalties today.

Other notable public submissions in 2013 include one from Archibald Prize-awarded painter Ben Quilty, who argued that royalties were “money for nothing” and weren’t helping the artists who needed them the most. Mr Quilty declined to give his position now. 

ABC News contacted dozens of other companies and people who voiced concerns in submissions a decade ago.

Some remain very opposed.

John R Walker doesn’t accept royalties on his artwork. (ABC News: John Gunn)

Abstract landscape painter John R Walker still doesn’t agree with royalties, and refuses to accept them on his work when it is re-sold.

“I still feel that, for myself, it is morally wrong,” he says.

Mr Walker is still painting new works at his studio in Braidwood, outside Canberra, that can sell for between $10,000 and $60,000 a pop. As he explains, the odd $50 cheque from secondary sales isn’t needed.

John R Walker is a landscape painter based in NSW.(ABC News: John Gunn)

“My work doesn’t pop up for resale very often. It’s mostly when people die or they have to downsize to a nursing home. Or occasionally corporate collections have sold off,” he says.

“Their prices actually have kept up reasonably with inflation but that’s about all.

“The people who’ve been buying my work for the last 40 years have given me what I need for the journey.

“They’re my supporters, my friends, if they eventually get some reward for that, what they get is rightfully theirs, not mine.”

Mr Walker also voiced a lingering concern in some sections of the market that royalties are, in practice, benefiting the estates of old, dead white men.

Brett Whiteley, Sidney Nolan and Fred Williams are the top-selling secondary market artists by auction results in Australia.

Another person who made a submission back in 2013, Perth-based art collector Dr Michael Lewis, told ABC News he still thinks royalties are “illogical” and make a “mockery” of the market. He adds that he loses money on many of the works that he re-sells on the secondary market. 

“Someone, somewhere thinks this is protecting poor, struggling artists from greedy, profit-taking art collectors,” he says.

Yet other major entities that ABC News contacted say they’ve changed their mind on royalties and that the “sky hasn’t fallen in”, with Australian auction results now back to near pre-global financial crisis levels. 

One art dealer who has come around to the cause is the former Sotheby’s Australia curator Mr Davidson, who is today known to buy for Steve Martin, and owns galleries in New York and Melbourne that sell work by some of Australia’s top Indigenous artists.

Mr Davidson says he’s had “some pretty robust conversations” with other art market professionals over the years about royalties.

“The indirect benefits far outweigh the costs,” he says. 

What are the real benefits of royalties?

Copyright Agency is the entity that is tasked with collecting royalties.

Over the years, the not-for-profit has been dogged by allegations of a lack of transparency about where all the cash it collects is going

In an interview with ABC News, its head of visual arts, Judy Grady, maintains that the royalties are helping artists from across the spectrum.

The Copyright Agency’s head of visual arts Judy Grady says millions of dollars of royalties have found their way to artists since the scheme began.(ABC News: John Gunn)

“It’s benefiting artists at all stages of their career, all around the country,” Ms Grady says.

“To speak specifically to rich, white, older artists: every industry obviously has its stars, its leading performers. We don’t resent them being paid for what they do.”

Over the years, Copyright Australia has published testimonials of support from a range of artists, such as Abdul Abdullah, Joel Rea and Wendy Sharpe.

The agency takes a 15 per cent commission on the royalties it collects.

After its cut, $1.4 million was paid out to artists and their estates last financial year.

This annual figure has been rising substantially as more work clears the 2010 hurdle.

Yet Copyright’s last annual report shows, of the 10,000 resales reported to it during the 2022-23 financial year, only a third were eligible for royalties.

Artists known to still be regularly impacted by the 2010 rule include living artist John Mawurndjul, who created many of his famed and internationally-sold bark paintings late last century. 

Ms Grady regrets the 2010 barrier.

“I would have preferred that that date was not there. But that’s not up to me,” she says.

ABC News is aware of some art market professionals organising so-called voluntary royalties or donations on ineligible sales. 

What about the estates of dead artists?

Copyright Agency says 54 per cent of the overall cash collected so far has gone to the estates of dead artists.

While missing out on royalties for the two Sotheby’s sales, Mr Carroll’s account has received payments for eight paintings, totalling $9,000.

Some estates are shrouded in mystery, including that of Australia’s top-selling Indigenous artist by auction result, Emily Kame Kngwarreye.

The Northern Territory government is the estate’s official trustee. It declined to comment. 

Meanwhile, another celebrated Top End painter’s estate is managed by a law firm in Cairns.

Sales of work by the late Sally Gabori appear to be regularly impacted by the 2010 rule. But the children of the Mornington Island abstract painter say money from her estate helps send their grandchildren to boarding school.

Sally Gabori’s children Amanda, Dorothy and Maxwell live on Mornington Island.(Supplied)

“It helps the little ones,” the painter’s eldest daughter, Dorothy Gabori, told the ABC on a video call from their island home in the Gulf of Carpentaria.

Sally Gabori famously only took up painting while in aged care, pushing out colourful works until she passed away aged 91 in 2015.

Two years ago, a court found the former boss of her arts centre ripped her off while she was alive by selling off 176 of her works without her knowledge and pocketing the cash. 

The Indigenous artist’s work is today sold globally, including by Sotheby’s in New York. 

Sally Gabori painted this piece in 2008.(Sotheby’s/ABC News: Alistair Kroie)

The auction house sold this 2008 piece Big River at Thundi for $US190,500 ($291,075) after seller’s commission last year.

It would have likely been impacted by the 2010 rule if re-sold in Australia.

ABC News also understands that no voluntary royalty from this painting’s sale was paid out through Copyright Agency. 

The law firm that manages Ms Gabori’s estate declined to comment for this story.

“We should have been getting more than what we get now,” Dorothy Gabori laments.

Copyright Agency believes works by at least 100 different Australian artists have been sold offshore in the last five years.

As Ms Grady explains, auction houses, sellers and galleries selling Australian art offshore have “no requirement” to pay royalties there, as they are guided by local laws and schemes. 

Yet despite this, royalties will be soon collected for Australian art sales in some markets. 

How can royalties be collected offshore?

The law implemented 15 years ago left the door open for Copyright Agency to work with collecting agencies in other countries with existing resale royalty schemes to recoup cash for offshore sales, as part of two-way arrangements that give the same rights to those countries in Australia.

The federal government has now amended the laws to allow this, with offshore collection to begin from March 31.

The 17 reciprocal countries include France, Italy and the United Kingdom. 

Mr Bell, whose work was also re-sold by Sotheby’s in New York last year for $US88,900 ($135,000), applauds the government on reciprocal rights.

“I’m very happy, to be honest,” he says.

Royalties will be paid out in accordance with the rules in the country where the art is sold.

Take this example of a canvas by the late Emily Kame Kngwarreye, which Sotheby’s only auctioned off this month in London at its Modern & Contemporary Evening Auction.

Emily Kame Kngwarreye painted this untitled painting in 1993.(Sotheby’s/ABC News: Alistair Kroie)

The untitled painting went for £635,000 ($1.2 million) including Sotheby’s commission. 

The canvas had been held by a private collection in Queensland since it was created in 1993.

Meaning, under the 2010 rule, it wouldn’t have legally had to pay out a royalty if it had been sold on Australian soil.

Yet the UK’s scheme doesn’t have such a barrier.

This painting is understood to have gone to a prominent collection in New York.

One major global auction house, Bonhams of London, welcomed the reciprocal arrangement with the UK. 

In the UK, the buyer has to pay the fee, and there is a sliding scale of payment depending on final sale price.

Cassi Young is the post-war and contemporary art department director for auction house Bonham’s.(ABC News: Adrian Wilson)
Two men walk past the London office of auction house Bonham’s.(ABC News: Adrian Wilson)
Close up of the sign on the Bonham’s office in London.(ABC News: Adrian Wilson)

Bonhams’ post-war and contemporary art department director for London, Cassi Young, says they rarely get pushback from buyers about royalties.

“Without the amazing artists that we sell here at auction, we wouldn’t have a job,” she says.

Bonhams of London has auctioned off a few pieces by Australian artists in recent years, including by the France-based Jordy Kerwick, whose pop-art canvases have been soaring in value on the secondary market.

Yet, as Ms Young notes, Australian art isn’t a big business for Bonhams.

“We haven’t seen that many over here,” Ms Young says.

Here in Australia, one major auction house believes the cash will end up flowing one way.

Damian Hackett, executive director at fine art auction house Deutscher and Hackett, sees the reciprocal arrangements on royalties as a “lose-lose” for Australian art.(ABC News: John Gunn)

“How much in royalties are they expecting to stream into Australian artists’ pockets from the Czech Republic, Finland, Latvia, Portugal, Norway?” Deutscher and Hackett’s director Damian Hackett says.

“A brilliantly designed lose-lose for the Australian art market.”

The company is in the final stages of planning for an Australian auction that includes international work.

“Imagine if you had just exchanged contracts on your home, settling in six weeks, and the minister announces a new law that means 5 per cent of the sale price will be paid to the architect after the 31st of March,” Mr Hackett adds.

In a statement, a spokesperson for the federal Department of Arts said the reciprocal arrangement was a “long-standing” objective of the government.

“This will make a real difference for Australian visual artists, including First Nations artists, whose work is in high demand internationally,” they said.

Yet as many will note, the new deal doesn’t touch the place where a lot of Indigenous Australian works are in high demand: New York. 

“All the rich will send their works to the United States,” Mr Bell says.

Could the US bring in royalties?

Copyright Agency’s Ms Grady says they can’t recoup in the US because it doesn’t have a royalty scheme. 

The state of California used to, but it was controversial and eventually struck down last decade after eBay, Sotheby’s and another major auction house, Christie’s, refused to pay royalties.

In recent years, some people in the US have called for fresh royalties, including a former curator at the Metropolitan Museum of Art.

Yet the calls have been muted and some in the financial press in the US have dubbed royalties as “just a bad idea”.

Sotheby’s auction house in New York City.(Getty Images: Noam Galai)
Bonham’s of London is planning Aboriginal art sales in New York.(ABC News: Adrian Wilson)
Christie’s auction house in London.(Getty Images: Sion Touhig)

Sotheby’s declined to comment for this story, but a spokesperson pointed to information on its website showing that the auction house enforces resale royalties in applicable markets. The company didn’t respond to specific questions about Mr Carroll’s work. 

The auction house has not yet announced its next Aboriginal Art sale in New York, and is grappling with the sudden loss of its senior consultant on Indigenous Australian art in an accident last year.

ABC News has seen evidence that Bonhams wants to hold its Indigenous Australian auction in New York in 2024.

That company declined to comment on the US market. 

Alison Carroll is on the board of Ernabella’s arts centre.(ABC News: Xavier Martin)
Alison Carroll says it is important the Anangu get money from their art back into the community.(ABC News: Xavier Martin)

Back in central Australia, Ernabella’s art centre has been trying to reach out to the sellers of Walungurru through the gallery that originally sold it in the US, requesting on behalf of Mr Carroll’s family for a donation for “his children and grandchildren”. 

“What about the person who did everything, put it in a canvas, painted?” Ms Carroll asks.

Ms Carroll is today a celebrated batik and ceramic artist in her own right, and on the board of Ernabella’s arts centre.

Her take is more than financial. The APY Lands community leader wants art markets to think about the origins of what they sell. 

“It still belongs to the artist. It still belongs to the Anangu. It still belongs to me. It still belongs to my husband,” she says.

“They have to think about the artist. They are the owner of that painting. The dreaming. The rock holes.

“It’s important for Anangu to (get) the money here.”


Reporting: Emilia Terzon

Production: Emilia Terzon, Megan Mackander, Michael Janda and Kate Ainsworth

Photography: Xavier Martin, John Gunn, Adrian Wilson

Graphics: Alistair Kroie

Digital Editor: Michael Janda

Posted , updated