Protecting Indigenous Artists Against Infringement and Appropriation
Photo Credit: iStock/jewhyte
The Copyright Alliance is thrilled to celebrate Native American Heritage Month 2022 by honoring the diverse history, heritage, and culture of Native American and Indigenous Peoples. Copyright is rooted in the philosophy of protecting and enabling creators’ works and livelihoods to enrich American culture and art. Yet, at the intersection of Native American heritage and copyright, many question how our laws protect the works that represent the culture itself.
In our 2022 Native American Heritage Month blog, we’ll explore how copyright law and other laws protect Indigenous peoples from infringement, and what to look to for the future of copyright and copyright-related protections for cultural expression.
What Protections Are Currently in Place?
To begin, it’s important to note that there are non-copyright laws that are brought into the discussion of protecting Native American art and culture—the primary one being the Indian Arts and Crafts Act of 1990. This truth-in-advertising law states that:
“It is unlawful to offer or display for sale or sell any good, with or without a government trademark, 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.”
Meaning, if someone were to sell, display to sell, or offer to sell a product and falsely suggest that it originated from or was produced by a U.S. tribe, they could be held accountable in a court of law. This law, most recently amended in 2010, protects Indigenous artists and creators’ crafts and traditions as well as consumers from misrepresentation, preserving the cultural significance of authentic Indigenous art, traditions, and craftmanship. However, this law does not protect against works that are copies or inspirations that are not advertised as being produced by a member of an Indian tribe (as defined in federal regulations), permitting the myriad of culturally appropriative manufactured goods that distort and exploit Indigenous symbols, patterns, and messages.
How can copyright law work in tandem to prevent these issues? Admittedly, there have been very few cases related to copyright that examine the infringement and appropriation of longstanding Native American traditions. However, because copyright protects minimal creative expressions, it protects the creativity authored by members of Native American tribes who imbue their culture into such works.
Sealaska Heritage Institute v. Neiman Marcus Group
In 2020, the Sealaska Heritage Institute (SHI) filed a lawsuit against the Neiman Marcus Group for the unlawful sale of a $2,500 “Ravenstail Knitted Coat.” SHI alleged that the defendants’ coat infringed upon the copyright of a robe created by National Endowment for the Arts National Heritage Fellow and famed weaver Clarissa Rizal’s creation in 1996 titled “Discovering the Angles of an Electrified Heart,” which displayed the intricate and highly distinctive, 200-year tradition of the Tlingit, Haida, and Tsimshian Ravenstail weaving, and pattern associated with Alaska Native and Northwest Coast peoples.
After Rizal’s death, the copyright to the work was passed to her heirs, seeking to protect and enforce Rizal’s work. Neiman Marcus had allegedly been selling copies of their own version of Rizal’s work since August 30, 2019. SHI argued that by using the term “Ravenstail” and replicating the copyrighted robe, the Neiman Marcus Group was in violation of the Indian Arts and Crafts Act of 1991 and the Indian Arts and Crafts Enforcement Act of 2000, and infringed Rizal’s copyright. The defendants responded, claiming that the term and design were in the public domain.
The court never got to rule on the copyright infringement, or any other claims made in the lawsuit, since in 2021 SHI and Neiman Marcus settled the lawsuit with SHI stating:
“Though the parties disagree on the merits of the lawsuit, they acknowledge the cultural significance of the issues underlying the development, sustainability, and survival of Native cultures, as well as the importance of encouraging creative endeavors through freedom of expression and artistic design. The parties have agreed on terms to resolve all disputes between them under U.S. and Tlingit law.”
What About Overseas?
One of the most influential overseas Indigenous copyright cases is Milpurrurru v. Indofurn Pty Ltd from the Federal Court of Australia in 1993. The National Indigenous Arts Advocacy Association (NIAAA) discovered that a company, Indofurn, imported and sold carpets reproducing the work of several Aboriginal artists. Most of the works copied were created by three prominent artists, George Milpurrurru, Tim Payungka Tjapangarti (both deceased at the time of trial), and Banduk Marika. Banduk brought action against Indofurn along with the Public Trustee of the Northern Territory, who represented the two deceased artists. Banduk, a well-recognized Aboriginal artist and the first Aboriginal appointed to the Board of the National Gallery of Australia, was outraged to find her artwork replicated and manufactured without permission. Her work was initially featured in the Australian National Gallery portfolio, meant to educate on Indigenous culture, and featured images and messages long associated with the Rirratingu clan; images and messages which were distorted by Indofurns commercial process. Banduk did not consider this work solely her own, as during trial she noted:
“My artwork, which has been reproduced on carpets by the respondents herein, is known as the “Djanda Sacred Waterhole.” The image is an image [that] belongs to my clan, the Rirratjingu, and forms part of the mythology of the Djangkawu creation story. The image is of great importance to my clan and also has importance to clans in neighboring areas, which have rights in this image.”
Beyond having her work stolen, the misuse of the artwork had severe spiritual and cultural implications that could have resulted in repercussions against Banduk. She explained that these repercussions range from removing her right to create designs relating to her clan’s story, removing ceremonial participation rights, being outcasted from her clan, or being required to pay damages.
The court found that the carpet manufacturers infringed upon the copyrighted work and ordered Indofurn to release all unsold carpets and pay damages of approximately $188,640, distributed as a collective award among the artists. Unfortunately, the artists received only part of the award due to Infodurns executives appealing and declaring bankruptcy. However, this case has served as a building block toward a greater scope of Indigenous copyright protections. In the years following the trial, the original works were toured nationally, and Banduk now stands as an influential advocate for Indigenous artists protecting their rights under copyright.
What Progress Has Been Made?
Internally, many tribes have enacted self-governing principles to guide the rights and expression of cultural trademarks and art. Nationally, many activists and movements are surrounding the expansion of copyright protections for Indigenous peoples. On a global scale, the 2007 United Nations Declaration of the Rights of Indigenous Peoples, now adopted by 147 countries, including the U.S., references copyright protections in Article 11 declaring,
1. “Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect, and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature.”
2. “States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.”
This document, although largely presentational, shows a promising interest in protecting Indigenous intellectual property and copyright.
A Look to The Future
For Indigenous communities battling on the front lines of environmentalism, appropriation, and sovereignty, copyright protections can serve as an avenue for justice. Although we inch ever closer, current copyright protections do not cover the wide variety of cultural and communal intricacies that reside with Indigenous art, history, and traditions. Some advocates push for a framework of protections within intellectual property law, specifically ones covering oral and non-assigned community works. Others suggest something akin to a registry or database to handle royalties and protections for Indigenous work. Regardless, all of these proposals come with the quarry of fitting the complex needs of Indigenous culture into our western ideas and systems of intellectual property. I suspect there is not a perfect fit around the corner; however, I remain hopeful that we can continue to explore ways in which our intellectual property laws can wholly encompass the freedom of expression and culture for Indigenous creators. Until then, the copyright and creative communities remain steadfast in support of Indigenous and Native American creators everywhere.
Further Reading
Join the Copyright Alliance in celebrating Native American Heritage Month 2022 by immersing yourself in additional educational material:
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