Performing Archive

Public Domain and Indigenous Peoples’ Rights

Amy Borsuk, Scripps College

The United States legal system of intellectual property (IP) was developed in order to ensure fair usage of an author’s ideas in the form of literary, scientific or artistic works and inventions. Depending upon the scenario, fair usage can be defined as providing a full and accurate citation of a reproduced photo with permission from the author, or can consist of paid royalties to a musician for every copy of a track sold on iTunes. One of the main goals of IP is to protect these ideas from being misappropriated, plagiarized and/or used or sold without permission from the original author. The system of IP laws is complicated, and is even more so for indigenous peoples whose cultural systems of ownership are different in legal systemic and cultural contexts. This disparity between the IP system and indigenous peoples’ cultural practices has, in many cases, resulted in lack of mechanisms to protect cultural heritage of Native Americans, leading to the circulation and use of Native American images, songs, languages, artifacts and property without consent from the tribal authorities often in (possibly unintentionally) appropriative ways.

The United States intellectual property legal system is divided into copyright and industrial property. Copyright “relates to artistic creations, such as poems, novels, music, paintings, and cinematographic works. In most European languages other than English, copyright is known as author’s rights.”[i] To explore the complexities of both types, let alone industrial property, would require a longer piece, but simplified and most relevant to indigenous peoples’ intellectual property, copyright determines and defines authorship of a particular idea or object (such as a novel). What’s important to note in direct relation to indigenous peoples is how authorship is determined and what is considered valid as intellectual property under the United States legal system. According to 17 USC 102, United States Code, Title 17, Chapter 1, section 102, ownership originates from an individual, a singular source of information or property.[ii] The consequence of misuse of an owner’s property is economic loss[iii], such as pirating a copyrighted DVD, which deprives the original owner of profit for his/her work. Furthermore, author/ownership that qualifies for copyright “subsists…in original works of authorship fixed in any tangible medium if expression now known or later developed, from which they can be perceived, reproduced, or otherwise communicated.”[iv] The problem in this definition is that protection is determined by fixed authorship (a singular, determined entity) of an original work (which implies the necessity of a fixed origin). Indigenous intellectual property, on the other hand, is generally defined by social relations and responsibilities. Ideas are communal, and a group of people have the right of use and responsibility of protection of traditional knowledge. The negative consequence of using indigenous intellectual and cultural heritage by others is cultural, spiritual and economic losses[v]. For example, Māori and the Zuni make “no distinction is made between sacred objects, and the like, and copies (including photographs) of them. All are equally powerful, sacred, or otherwise instilled with vital values and thus require appropriate care and protection”[vi]. This means that objects, images, songs and art that are circulated outside of the indigenous community are being still sacred, but being removed from their sanctified context and removed from the community. This takes agency away from indigenous peoples from being able to protect and regulate the public use of their property, as well as the sanctity of their heritage. It also degrades the original culture and causes the object to lose its original cultural meaning. To infringe on usage of indigenous property by culturally appropriating spiritual rituals, artistic designs, songs, or even photographs of indigenous people is considered an ethical violation of human rights, but is not legally offensive.

Consequently, two legal problems arise: not only are indigenous materials left unprotected under copyright, meaning that little or no legal action can be taken if misuse occurs, but also that as a result, indigenous property becomes part of public domain. In turn, legal action cannot be taken because the property is in public domain. Property and ideas that exist in public domain, such as novels that have lost their copyright (Jane Austen’s novels would be an example here), can be used and reproduced without the author’s permission and with no charge. Consequently indigenous ideas that fall into public domain may potentially be used under public domain in culturally appropriative or offensive ways without a legal framework for action against such behavior, or for promoting respectful use of indigenous property. Indigenous traditional knowledge and traditional cultural expressions in the public domain makes indigenous ideas more easily accessible to both indigenous and non-indigenous people. The existence and structure of public domain encourages networks of exchanging information, particularly through social media websites such as Facebook. However, these networks grow without setting parameters for how this information can be accessed, by whom, and under what circumstances, resulting in misuse and appropriation by people outside of the indigenous communities.

Thus, indigenous peoples have materials left unregulated in public domain. The case of the Navajo Nation v. Urban Outfitters in the summer of 2011 illustrates the ways in which these varied issues can overlap. In 2011, Urban Outfitters released a line of underwear called the “Navajo Hipster Panty Party.” Besides the outrageously racist and sexist implications in the name of this line, this line of clothing also causes cultural loss for the Navajo Nation by associating a non-Navajo item with the Nation, devaluing the original artistry and culture of the Navajo. In an attempt to make Urban Outfitters remove the offensive product, the Navajo Nation sued Urban Outfitters for use of the word “Navajo” in their “Navajo Hipster Panty Party” underwear line.
In an open letter addressed to the CEO of Urban Outfitters, Sasha Houston Brown of the Sioux Nation said, “There is nothing honorable or historically appreciative in selling items such as the Navajo Print Fabric Wrapped Flask, Peace Treaty Feather Necklace, Staring at Stars Skull Native Headdress T-shirt or the Navajo Hipster Panty. These and the dozens of other tacky products you are currently selling referencing Native America make a mockery of our identity and unique cultures”[vii]. The Navajo Nation followed up this letter with a cease and desist letter, stating,

Your corporation’s use of Navajo will cause confusion in the market and society concerning the source or origin of your corporation’s products. Consumers will incorrectly believe that the Nation has licensed, approved, or authorized your corporation’s use of the Navajo name and trademarks for its products – when the Nation has not – or that your corporation’s use of Navajo is an extension of the Nation’s family of trademarks – which it is not. This is bound to cause confusion, mistake, or deception with respect to the source or origin of your goods. This undermines the character and uniqueness of the Nation’s long-standing distinctive Navajo name and trademarks, which—because of its false connection with the Nation—dilutes and tarnishes the name and trademarks.

This cease and desist letter works in tandem with the Indian Arts and Crafts Act 1990, which states: “[i]t is illegal to offer or display for sale, or sell any art or craft product in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian Tribe or Indian arts and crafts organization, resident within the United States. If a business violates the Act, it can face civil penalties or can be prosecuted and fined up to $1,000,000.”[viii] The act was written to protect indigenous peoples from misuse of imagery or artistic traditions specific to indigenous tribes, equivalent to a breach of copyright by plagiarizing. The act also works to protect against cultural or spiritual loss. The Navajo Nation, as mentioned in the cease and desist letter, has had to trademark their nation’s name in order to demonstrate, under the law, that an identity or image is being unlawfully copied and misrepresented. Urban Outfitters eventually was forced to remove the word “Navajo” from their line, but still the company still uses the “tribal pattern” in its design.[ix] Thus the Navajo Nation was able to protect its name by making it into a legal entity, but their protection could not extend to the product itself. As a result, the appropriate art designs remained on the product, but the extent of the Navajo Nation’s legal powers had been reached.

Other possible ways of giving indigenous peoples legal agency are currently being explored. Edward S Curtis’ photography is often used in similar ways. Because all of Curtis’ photos are in public domain, his photographs of Native Americans have been used not only for academic archives, but in fan-produced videos and slideshows of indigenous peoples. These videos are often canvases on which YouTube commenters paint their own (often stereotypical) images of Native Americans, again taking attention and agency away from the subjects of the photos in their own fan-work.

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