Episode 6: Arts Lawyer & Social Justice Advocate Delwyn Everard

INTRO

LEAH ALYSANDRATOS (FAME Careers and Sponsorship Coordinator): Hello and welcome to the FAME Law Students’ Association’s podcast: The Brief. For the uninitiated, FAME sands for the Film, Art, Media, and Entertainment. The FAME LSA is a group of students from Melbourne Law School who are passionate about the arts and culture.

In this podcast series, we chat with lawyers and artists working in the creative industries, learning about their daily work, career development, and topical issues facing the industry.

In today’s episode, we chat to Delwyn Everard who works deeply within the creative industries and advocates for the protection of Indigenous culture. Delwyn shares her story of New York in 1980s, and how instrumental her experience there was in who she is now as a lawyer. She delves into the intricacies of copyright law and how intellectual property protections do not adequately help Indigenous art. She shares her opinion on the AFL Indigenous flag controversy and provides eye-widening wisdom, especially about the value behind truly appreciating art and creators. In recognition of International Women’s Day, we hope that you enjoy this episode.

SAMARA: Well, thank you very much for joining us, Delwyn! To start us off today, could you please tell us what drew you to studying and practising law, specifically in the arts?

DELWYN: I’ve always just loved words, debates, and stories. I was a voracious reader as a child, I was hopeless at sports, and I  always had my nose in a book. I was quite argumentative, a debater in school. All those things I think we’re not bad practise for law actually! I love the thrill of an argument, and I love unpacking a story, and listening to others, and following a narrative. I think all of those things led me to the law.  In terms of the arts, I actually enrolled in architecture, and then I thought about journalism. I had always been interested in the arts. My mum used to take me to a lot of theatre as a little girl. I was very lucky. Not so much the visual arts, I hadn’t had much exposure to that as a child. 

I went to the University of Western Australia and they didn’t have any IP units or anything that related to the arts. So having decided to study law, because I liked words and story, there wasn’t that much of a focus on the arts. But I did a Masters at Columbia University, in New York, when I finished school. That blew me away – hundreds of subjects to choose from. I did a Copyright Moral Rights unitThere was an amazing unit called Law In Theatre, which was half law students and half theatre students, and basically over the course of the subject, w e negotiated a hypothetical Broadway play, so that got me very interested in the arts.

My first job in New York did not have anything to do with IP but when I came back to Australia I worked at Allens in the litigation department and I was lucky enough to work with some really fabulous IP lawyers, and I did a lot of patent work. So, having done no science at school I then started to learn about biochemistry and mechanical engineering, and things like that. And again, that is about stories, talking to inventors, you find out what gave them their  ‘a-ha’ moment, so I got very interested in that. about how their mechanism came about. I did some music copyright at Allen, and then I went and joined a small boutique IP firm attached to a patent attorney firm, Sprusons. I did a lot more IP there but it was still very science-y but now a lot more trademark. And that is actually quite creative too, you learn how businesses build brands, their clever marketing, brand stories; it ends up distinguishing services and goods which are practically identical.

And then, must be just over ten years ago, I just needed a change. I had been in private practise for a long time. I took a bit of time off, I had teenage kids at the time, and I just thought I needed to be a much better mother and do tuck shop. I hated it.

But, I then rang the Arts Law Centre to volunteer, and the Director said “Oh come have a coffee Delwyn!” for coffee. Suddenly I had a job,and I stayed there for ten years, and so that is when I really got into that area of IP, so away more from the science and trademarks and patents, and into the arts. It was particularly wonderful to be working for creatives who really needed legal advice, not big business, but first time filmmakers, actors, and dancers, people writing stories and not yet sure, you know, of how they were going to go. It is so much more than IP too – it was all aspects of being an artist, and I really loved that. About two years ago I left the Arts Law Centre. I thought I was going to do something really different, I was waiting for that next, big, different career to come along. But I just had people contacting me, saying “Delwyn, can you help me?”, and suddenly I was doing what I’d always done and I realised how much I loved it. So now that is my practice! It’s a bit of a meandering story,  I didn’t start out with the intention of being an arts lawyer, it just happened. 

SAMARA: That is a wonderful story, and I think what is very interesting  is the role of story throughout all of that career journey that you’ve shared with us, in that, story is so important to the law, regardless of whether you’re working in a traditionally conceived creative space, or if you are able to see the creative side of IP, patents, and in science as well, it is really interesting. That subject you mentioned about law and theatre at Columbia sounds very interesting. Touching on your experience working in the US, what do you think you gained from that that has equipped you for your current practice, or your career since that point in time? 

DELWYN: Columbia is an amazing law school, I have to say that. The thing it did mostly was open my eyes to the enormous breadth of practise opportunities within the law having come from, as I said, back in the ‘80s when the offerings at law schools in Australia, certainly in Western Australia, were quite narrow. To go to a wonderful university like that that had so much choice and so much variety. 

I did a Human Rights subject taught by a professor that marched with Martin Luther King . They had all of these amazing community workshop subjects where you could intern at a refugee community legal centre, or tenancy advice, and  all of that counted as a subject.

My daughter has just done law and I know now that universities offer this here in Australia, but they did not have that then, so that is just incredibly exciting, and it really did make me appreciate then that I didn’t have to just think in the narrow terms of what I studied, or what the first law firm I went to might be doing.  If there was an area I could keep looking for that…for those opportunities. 

The other thing about working in New York – so my first legal job was at a Wall Street firm – Number 1 Wall Street – great address, a firm called Hughes, Hubbard & Reed, which was a litigation firm. And I think what that gave me was just that they had such high standards, and they expected everyone to deliver right from day one. I never did anything boring, it was always very exciting, and I felt a responsibility to work hard and meet those high expectations. We worked with amazing clients and directly with partners. It was very exciting, and I think the discipline of that and intellectual rigour in the demanding environment of New York at that point in a firm like that really set me up well to come back to Australia, and I think that discipline carried throughout my entire practice.

The other thing that’s really stayed with me from those days is that back then, working in a big wall street firm, you absolutely had to do pro bono. It didn’t matter how many hours you worked, or what your budget was. If you weren’t making a solid and meaningful contribution in helping those who are disadvantaged, then you just weren’t meeting the firm’s expectations.

SAMARA: Wow.

DELWYN: This was certainly not the case when I got back to Australia, and not really the case throughout my whole career, actually as a lawyer in Australia. I think it is really important in legal practice. It is a very big part of what I do now, obviously at the Arts Law Centre, it was all pro bono just about! But I think it is really important, and I think  it helps you understand the value you have as a lawyer. When you stop and think about how much you built last month or wherever you’ve met the expectations of partners, you’ve got a responsibility to the community you live in to use your skills and the amazing education you have to help others. So that is really important to me. 

SAMARA: It is very interesting to hear that it was so strong to that culture in New York. I think it is different…I hope it is different in Australia now, that pro bono culture.

DELWYN: I think it is, certainly at the Arts Law Centre. I’ve worked with a lot of different firms who contribute pro bono expertise and time and skills to projects that the Arts Law Centre was working on. They were all really quite amazing. So, I think it is a much better part now than when I just came back to Australia. 

SAMARA: Yeah! The Arts Law Centre sounds incredible. We’ve had a couple of lawyers mention that that’s where they do their pro bono work and does really positive things for artists. So I think that has inspired a few of us at FAME to want to learn more about it.

DELWYN: Good!

SAMARA: Relatedly to some of those points you mentioned about what you learnt from working at the firm in New York about having very high standards and discipline. We wondered what you considered to be the key skills and qualities required to be a lawyer? Whether that be generally or specifically in IP, trademark, and copyright law. Something that our student listeners might want to consider thinking about as they move through their course and start picking up work experience or extracurriculars. 

DELWYN: Well, thinking about, I mean I guess it is interesting to think about it being an arts lawyer as opposed to  a lawyer more generally. Because I think the most important thing is to love the arts yourself and stay engaged with it, really. You know, I know lawyers that perform in bands, make films, write books. Not everyone has those skills but certainly you’ve got to love the arts. And I think all lawyers, but particularly important in the arts, I think need communication skills. Artists don’t always think in that more linear, logical fashion, which is the way that lawyers need to approach problems. That’s not to say that they can’t find creative and lateral solutions. But some artists are very interested in copyright. Most creatives, whether they’re filmmakers, or writers, or musicians, are much more interested in their own practice. They are only interested in copyright or the law to the extent of law as much as it impacts them. True, of lots of clients, actually. So they don’t need to know about the law, they need you to know about the law. They want to know how it impacts on their practice. What should they do now? What should they do next? What’s the solution to their problem? And certainly, communicating with people in the creative sectors who think very much creatively and outside the square,   that means that it is really important to understand their creative practice before you give them a solution. I don’t know if I said that very eloquently.

SAMARA: It makes complete sense.

DELWYN. Yeah. So I think they’re really important skills, and I think more practically, becoming an entertainment lawyer, or an arts lawyer, or an IP lawyer, is quite a small specialised field. IP more generally, less so. But the areas of probably science and technology have more big business and bigger clients and more opportunities there. When you get into the arts, it is quite a small field.

SAMARA: Mmmm.

DELWYN: They tend to be more smaller firms and sole practitioners, which is why I think you should stay engaged with the arts,  because the smaller firms and sole practitioners are often falling into that category and that will appeal to them just as much as having studied those subjects and worked  in that area. Because what’s important is understanding the creatives that you’re going to be delivering advice to. 

SAMARA: It’s brilliant advice and really highlights the fact that you need to be able to empathise with those clients to give them the right service.

DELWYN: Mmmm.

SAMARA: You mentioned technology which I wanted to ask you whether, because you’ve noted on your website that it is important to meet the challenges of a dynamic digital age, what major technological disruptions have you been observing in the arts space? And how does this affect how you provide advice or advocate on behalf of the arts and cultural sector? 

DELWYN: The most obvious is the one that is keeping both of you in your rooms at the moment, the coronavirus pandemic. That has impacted the arts terribly. The arts is fundamentally a gig economy. Most creatives see their creative practice as delivery to a live audience, in a gallery, or in a theatre, or in a cinema, or in a pub for live music. So, all of a sudden that’s gone, and that has made huge differences, even behind the scenes such as making a film. I have a filmmaker client that is meant to be shooting right now in Melbourne and that can’t happen.

That has been enormously disruptive. One of the things I’m just thinking of is that the arts, however, are just so extraordinarily creative. I don’t know if you’ve watched the little Lucy Jurack and Eddie Perfect YouTube series. So they [were] in lockdown in Melbourne and they made an entire mini film series…

SAMARA: Oh, amazing!

DELWYN: …about falling in love during lockdown using zoom and from within their own houses and posted it up. It  is really very clever. I have seen so many examples of the arts being agile and flexible and adapting and creating. The Darwin Aboriginal Art Fair went entirely online this year which seems so sad because it is such a wonderful event that brings Aboriginal artists from all over the country together for this amazing fair. And yet talking to arts centres afterwards, some of them had sold more than they did in previous years because they did such an amazing job at delivering and promoting the entire thing online. 

But in terms of giving advice, it requires just a lot more flexibility and actually understanding of digital platforms and the different sorts of contractual arrangements that will be required. They are all things that…I don’t know that it’s required… different sort of legal solutions so much. To some extent, I’ve spent a lot more time looking at digital platforms and giving advice in that area rather than the more traditional types of contractual arrangements that might have had to be made. 

But, the other technological disruption that to me is the one that is more difficult in a sense is probably the fact that the Copyright Act is just not really well adapted to cope with all the changes of the digital age. So it’s got that list that it must be a musical work, or it must be a dramatic work. Whereas so many things are combinations of both those things. It is not really well adapted to deal with the creativity that the digital age has opened up for creatives. That is a challenge for lawyers, I think, so you’re constantly trying to use…the Copyright Act does not necessarily go far enough, or doesn’t deal with a particular situation, so a contract becomes really important.

I think that rather than just amendment by amendment to the Copyright Act, maybe something more needs to be done that looks at it in a different way, especially as we live in an age when everyone, to some extent, is a creator on social media. There is this enormous culture of borrowing which is at odds with the way the Copyright Act looks at things and that needs to be dealt with. 

SAMARA: Very interesting. Copyright is not something that I’ve had an opportunity to learn a lot about yet in the JD, but we have been picking up on some copyright issues just generally at FAME. Actually, we started a little blog focussed on copyright, so it would be very interesting to get some of your thoughts. 

Clearly there needs to be change about law. On the topic of copyright, we wanted to hear your perspective on the indigenous flag copyright issue.  We understand that since its creation, it’s been shrouded in copyright disputes but has recently, I think in the past year, attracted a bit of attention from when the AFL didn’t include it in the Indigenous round. Do you think that the Copyright Act, or is there any legislative reform, generally that could be applied to protect Indigneous intellectual property better than it currently does?

DELWYN: I do, I have some views on the flag, I am happy to chat about those if you like,

SAMARA: Yeah, please!

DELWYN: So, I think the Copyright Act protects visual artworks reasonably well, and that’s what the flag is. The current controversy with the Aboriginal flag; there is a number of aspects to that. First, I think it is a missed opportunity for leadership from the Federal Government, and to some extent a missed opportunity for leadership by the AFL, and the reason I say that is because I’m a copyright purist. The flag was designed by a Luritja man named Harold Thomas, an Aborignal activist, and he licensed the copyright, as I understand it, to a couple of flag manufacturers so that every single Aboriginal flag that has been manufactured since he drew that flag has earned him a little royalty. I believe that he has never really, until recently, any other sort of licensing opportunities, although as the copyright owner, he is absolutely entitled to. Our whole system of copyright is based on the principle that as the artist and creator, he is the one entitled to generate commercial returns from it in recognition of his creativity. That’s how copyright works. He hasn’t traditionally, I understand, sought to get licenses from clothing and I think that’s largely because many of the clothing that bears the Aborignal flag is clothing that is made and used by Aborignial community groups. Harold doesn’t seem to have pursued those groups, no doubt, and I’m guessing, because he’s an Aboriginal activist and an Aborginal man and he loves the fact that Aborignal People and Torres Strait Islander Peoples  of Australia want to use that flag. 

I think the AFL is a bit different. I think if the AFL makes millions and millions of dollars, and it wants to use the flag, I see absolutely no reason why it shouldn’t pay for that privilege. And I don’t think that is necessarily a Human Rights or cultural issue for the AFL. If it wants to put the flag on the jerseys they should pay for it, just as it pays, I guess, all of the artists that create the jerseys for the Indigenous rounds. But I think what’s happened is that in the last year, Harold Thomas has started, and he may need the money, I don’t know how he earns his living, to look at earning some licensing revenue from clothing. He’s done that by sublicensing that, I think, to the company that has been in the news, WAM Clothing, but I assume that’s on the basis that any royalties they collect, he gets some of those royalties.  

So there is all of that, I think that he’s entitled to be paid for the use of his artwork.  If, and I think that this should happen, the Aboriginal flag has become such an important emblem for Australia and for Aborignal and Torres Strait Islander Peoples, then it needs to be available more widely, then the Federal Government should be buying the copyright from him and making it available, and that would show leadership.

SAMARA: I wonder how many know about the origins of the flag, because personally I only learnt recently that it was Harold who created it, and I think that having that understanding completely brings to light what you mentioned of the fact that the artists, and we obviously care a lot about artists being paid for their work, and being paid appropriately and sufficiently. So yeah, thank you for sharing your thoughts on that. Hopefully the Federal Government might kick something up from that.

Aside from the Indigenous flag, do you see other ways that we should be protecting intellectual and cultural property for Indigenous Australians? Is that again something the Federal government needs to be leading more so?

DELWYN: Yes, and I think the Federal Government is starting to look at that, which I think is fantastic. So, this is probably another problem with the Copyright Act. We have that  list of types of works and subject matter that is protected by the Copyright Act. We have musical works, and films, and artistic works. They are all rights that are held by individuals and they are time limited, in the sense that the copyright protection is generally limited to the life of the creator plus a period of time, seventy years. But in terms of Indigenous Culture, that is an ineffective mechanism to protect ancient rock art, or particular styles of Indigneous painting, traditional cultural expression, like the crosshatching, ceremony, language…all of those things. It can to some extent protect those things, obviously the amazing painting being produced by Aboriginal artists throughout Australia are well protected by copyright, but there are lots of other aspects of Indigenous culture that aren’t adequately protected. It is the oldest living culture in the world, it is so precious. It is why when tourists come to Australia, that is what they want to understand and experience; that Indigenous culture. It seems crazy to me that we don’t do more to protect it. 

I think up until now there’s been a belief that copyright’s enough, but I think now it’s becoming clear that copyright isn’t enough, or patents or any of the other types of IP protection that are available under Australian law

Australia is a signatory to the Declaration of the Rights of Indigenous Peoples, and there is a growing belief that to actually implement the level of protection that that requires, which means giving Indigneous Peoples control over their cultural heritage, forms of cultural expression, it requires, what is called sui generis legislation I think, and the Federal Government is currently looking at that as I understand. They are engaging in a consultative process. The House of Representatives Standing Committee just released a report about authentic art and the Federal Government’s response to that  has been to accept some of its recommendations, but in particular one that looks at engaging in a process to look at how better to protect Indigenous culture. I am really optimistic about that, and I think that’s a wonderful step in the right direction.

SAMARA: That sounds very positive. I think if we’ve learnt something it’s that clearly the law is inadequate, in a lot of circumstances, and perhaps should look at, I suppose, seeing how it applies to not just sticking to that common law tradition, and thinking a bit more broadly about its application. It is really, really interesting. 

To finish our podcast today though, Delwyn, can you tell us your favourite legal movie or tv show we should be watching?

DELWYN: Ooh, well, it is hard to go past To Kill A Mockingbird, I know it’s an old one, but it’s a beautiful one. Another old movie I love is The Accused, with Jodie Foster and Kelly McGillis in it. I love a movie with strong women in it, and I think that was ahead of its time. I do have a weakness for Rake, I have to say. 

SAMARA: Rake is an excellent TV show. I think there is not enough Australian TV that we can really sink our teeth into, well at least that’s what I find, but Rake is just exceptional. I haven’t seen The Accused. That sounds really good!

DELWYN: Oh, you should definitely watch that! I think it’s from, maybe the ‘80s, but Jodie Foster is amazing in it.

SAMARA: Yeah excellent, and To Kill A Mockingbird is a classic! Very good film and book. Well, thank you so much for joining us, Delwyn. It has been very, very interesting and a pleasure to learn about your career.

DELWYN: Yeah, my absolute pleasure!

OUTRO

Leah: You’ve been listening to The Brief with FAME LSA. This episode was hosted by Samara Jones. The theme song and sound was produced by Leah Alysandratos. A very big thank you to Delwyn Everard for chatting with us and please check out her podcast, Running the Show, for more. Special thanks to Samara Jones and Leah Alysandratos for producing the transcript available on our website. Thanks also to all past and present FAME LSA committee members and ambassadors for their support. And thanks to you for listening! 

If you want to hear or learn more about FAME LSA, like us on Facebook and Instagram, or visit our website at famelsa.com. If you’re a lawyer working in the film, art, media, publishing or entertainment space and want to get involved with FAME, we’d love to hear from you. Send us an email at general.famelsa@gmail.com.

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