Copyright, Folklore and Traditional Native Culture

Credit: Photo by author

I recently came back from a wonderful vacation with my wife in New Mexico. This is a spectacular part of the US for art lovers, as well as for those interested in nature and history. Santa Fe seems to have more art museums than gas stations, ranging from the Georgia O’Keeffe Museum to the New Mexico Museum of Art, the Museum of Indian Arts and Culture, the Wheelwright Museum of the American Indian, the Institute of American Indian Arts and many others. There are private galleries galore, and many native vendors selling art. The art scene, which first achieved prominence in the 1920’s, extends to other centres as well, such as Taos, Abiqiui, and a number of native “pueblos”. (If this sounds like an unsolicited plug for New Mexico as a place to visit, it is).

This proliferation of creativity made me reflect on the role of copyright as an enabler of all this cultural richness. Legitimate prints and posters of works done by O’Keeffe and other artists who painted in the area are of course widely available from many sources (as well as original works by contemporary artists). All are pretty well protected by the existing copyright regime. Side by side with the works of “Anglo” and “Hispanic” artists is the rich work done by many artists in the native communities that exist in New Mexico. These works range from the famous black pottery of Maria Martinez of the San Ildefonso Pueblo to designs, paintings, prints, weaving, and other art forms, almost all of them inspired by or drawing directly from traditional indigenous designs. The geometric designs of the Hopi, Navajo, Zuni, and Puebloan people have long been popular, dating back to early tourists who arrived by railway in the 19th century. In fact, many traditional art forms were adapted to meet the needs and wishes of these early tourists. Today, work based on these traditional designs is just as popular as when tourism began.

I wondered how a contemporary native artist protected his or her work given that the fundamentals of the designs were traditional and, from a copyright perspective, almost certainly in the public domain. I asked a couple of native designers but did not really get a clear answer. Protection of artworks that are based on traditional folklore and folkloric designs is a challenge. This is something that the World Intellectual Property Organization (WIPO) has been grappling with through discussions leading to a possible treaty to give protection to traditional knowledge, genetic resources and traditional cultural expressions such as folklore. There appears to be no simple answer.

WIPO’s website points out that:

“The current international system for protecting intellectual property was fashioned during the age of industrialization in the West and developed subsequently in line with the perceived needs of technologically advanced societies. However, in recent years, indigenous peoples, local communities, and governments, mainly in developing countries, have demanded equivalent protection for traditional knowledge systems.”

It continues:

“Recognizing traditional forms of creativity and innovation as protectable intellectual property would be an historic shift in international law, enabling indigenous and local communities as well as governments to have a say over the use of their traditional knowledge by others. This would make it possible, for example, to protect traditional remedies and indigenous art and music against misappropriation, and enable communities to control and benefit collectively from their commercial exploitation.” (emphasis added).

This work has been going on for at least twenty years, so don’t expect any imminent breakthroughs. There are difficult issues to resolve in many areas of creativity, music being but one example. For example, in many countries (but certainly not all) music requires some form of “fixation” to be protected by copyright. In these “fixation required” jurisdictions, proving fixation for traditional music and performances can be problematic.

To come back to WIPO, not only is there tension between countries in the developing world that are repositories and creators of significant amounts of traditional knowledge, and developed “western” countries, but within western countries there is a debate as to how to harmonize existing intellectual property law and all its legal precedents with a new regime that could challenge some of these IP legal principles. The native cultures of North America have to operate within the existing legal parameters of the US and Canada. Any initiative to treat traditional art forms as a special case in order to protect or limit access to them raises many questions.

It has been argued that it is desirable to protect traditional designs in order to ensure that they are not “misappropriated”. Misappropriation however can have many meanings. While protecting against inappropriate uses, wouldn’t putting traditional designs off limits to new artists (native or non-native) restrict creativity? Should only “native” artists be allowed to build on traditional designs to create new works, given the cultural and sometimes religious importance of many designs? And if this is the case, who qualifies as a native? Some of these questions arose when legislation was passed in the US in 1990 to ensure that any artifacts marketed as “Indian made” were in fact created by Indians.

That legislation was labelled The Indian Arts and Crafts Act of 1990. The Act “prohibits misrepresentation in marketing of Indian arts and crafts products within the United States. It 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.” Under the Act, an Indian is defined as “as a member of any federally or officially State recognized Indian Tribe, or an individual certified as an Indian artisan by an Indian Tribe.” Immediately of course this raised the question of the status of individuals with Indian background who did not meet this official definition. Whenever you draw a circle, someone ends up being on the outside.

The Act provides protection (the penalties are severe; up to $250,000 in fines and 5 years imprisonment for a first offence) to native creators to ensure that non-Indian work is not passed off as being produced by Indians. However if a non-native artist makes no such claim but merely takes inspiration from native designs, the Act does not apply. Equally, copyright protection also does not seem applicable to fill the gap.

It is not just the native tribes of the US Southwest who face the challenge of protecting indigenous products and designs. Closer to home where I live on Vancouver Island in British Columbia, the Cowichan Nation (unlike in the US, the term “Indian” seems to have fallen into disuse in Canada, being seen by some as having a pejorative connotation; indigenous groups prefer the term “first nations”) has had several high profile disputes with retailers who have either appropriated the patterns that have come to distinguish their knitted wool sweaters or who have described their goods as “Cowichan sweaters”. The sweaters produced by the Cowichan are heavy wool sweaters, hand knit, and made of naturally dyed yarn incorporating traditional designs. They are immediately recognizable by their heavy waterproof quality. What is ironic is that this product, now considered a “traditional” native craft evolved from both native and European traditions. The Salish had long engaged in weaving using natural fibres but knitting with wool was a 19th century innovation probably introduced by Catholic sisters. Designs were both geometric and depictions of animals, many resembling traditional Pacific Northwest designs.

There have been disputes over the years regarding appropriation or imitation of the product, either the name or the designs. The most recent case is with clothing designer Ralph Lauren which currently markets “Cowichan” sweaters online. During the 2010 Winter Olympics in Vancouver, there was another controversy when retailer Hudson’s Bay Company (aka “the Bay”) commissioned Cowichan-like sweaters from offshore suppliers, although there was no claim that they were authentic native sweaters. During the Olympics a compromise was reached allowing Cowichan band members to sell their authentic products in the flagship Bay store and at the First Nations Pavilion. However this outcome was arranged more for public relations than legal reasons, as the Cowichan band had threatened protests. With regard to the Ralph Lauren case, although I am not a lawyer it seems to me that the best approach for the Cowichan nation is to claim a trademark infringement since they have registered the name, but the laws of copyright are unlikely to provide much relief.

While the copyright slipper does not seem to fit the foot of native culture very well, there have nonetheless been some instances where copyright has played a role in protecting native art and designs, and in resolving disputes. There are several prominent cases in Australia, including one where the issue of group ownership of traditional cultural designs came into play in a copyright dispute involving the infringement of an aboriginal artist’s copyright on a painting. The courts have recognized that traditional aboriginal artworks fall under protection of the Copyright Act, and that individual artists have an obligation to their community to prevent inappropriate uses of cultural symbols. Nonetheless the principle is maintained that the copyright still belongs to an individual creator even if the work of that creator is based on traditional communal pre-existing symbols.

When it comes to the role of copyright and folklore, traditional art and design, there is no easy answer. It is complicated, as the endless discussions at WIPO attest. The economic benefits of copyright which encourage further creativity, the moral rights that allow control of a work and the neighbouring rights that protect specific performances all would seem to have relevance. Given the fact that many forms of folklore parallel the categories of works protected by copyright, encompassing folklore and traditional designs with the copyright framework would seem logical—yet the fit is uncomfortable and doesn’t work in many instances. Maybe the wizards at WIPO will find a solution, but I’m not holding my breath.

© Hugh Stephens, 2017. All Rights Reserved.



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