Of course they can…but they have to work within the rules of copyright and trademark.
The Hopi, for instance, could trademark certain kachina idols, and that means no one else can depict them.
What they cannot do is put an overall restriction on anyone making a “Hopi-esque” kachina figure. You can’t do “blanket” trademark restrictions. Intellectual property must be specific.
The Hopi have been very clever, and have “market kachina” figures, which they sell in gift shops, and they also have “sacred kacina” figures, which they protect and try to keep secure, essentially by keeping them secret.
If I were to spy one out somehow, and mass-produce them for sale, well, that’d be kinda narsty, and you’d have every reason to lose respect for me for it…but there is absolutely no possible legal way to prevent it.
…copyright and trademarks are a very poor mechanism for protecting tribal, cultural and indigenous rights. Take a look at the mess surrounding the Washington Redskins. Did trademarks protect the intellectual property rights of the Navajo, or of Dan Snyder? How much money has it cost to take this case to the supreme courts?
They could: but how many thousands of dollars would it cost to both set up the trademark and to enforce it?
You’ve just made my point for me. In western society there isn’t any practical way to protect their intellectual property apart from talking about it very loudly. I haven’t made a case that there should be a legal way to prevent it. I’ve simply stated that (in most cases) there isn’t a legal way to prevent it. So the Hopi or Maori or Navajo will use the only means available to them: to talk about it. Sometimes very loudly. We are talking about what cultural appropriation is. You don’t seem to be disagreeing with my definition.
…do you understand how copyright works? Do you understand what is and isn’t copyrightable, and how copyright protection works?
My post lays out the basics. I can only suggest if that my previous post didn’t answer your question (and it was pretty comprehensive) then please feel free to do some more investigation into what copyright is and what it protects. A basic understanding of copyright would answer your question. A couple of links to help you out:
So essentially: no, this class of intellectual property isn’t “copyrightable or something.” Which was the entire point of my post. As to why it isn’t “copyrightable or something:” its because as intellectual property laws/treaties/conventions have been developed and have evolved, indigenous intellectual property rights were not given much thought, because indigenous people have never had a very big voice in creating those laws/treaties/conventions.
What do you mean by “suffer?” As a photographer, do I physically “suffer” if someone takes my photo off the internet and uses it in a manner I disapprove of? Wouldn’t it be natural for me to get upset if someone were to use my images to maybe promote a Nazi agenda?
Suffer “experience or be subjected to (something bad or unpleasant).”
But with regards to suffering if no dance or other non-copyrightable cultural expression is protected doesn’t that mean everybody has an equal opportunity to poach from each other culture as they wish? So it seems to me that society doesn’t really have an interest in forcibly segregating cultural differences. Each person can decide to borrow what’s in the public domain be it a recipe, a dance, or a manner of speaking.
Very specific and recent implementations have been deemed to be copyrightable and that’s a trade off.
Now are you telling me that a specific poem by an indigenous person can’t be copyrighted if it was written in the past 100 or so years? Of course it can. So it seems like there is equal protection.
If a Nazi used your photo without permission wouldn’t that be a copyright infringement? Now if your photo was 200 or however many years Disney can push Congress to protect copyright it would be in the public domain and your wishes would be irrelevant. I don’t see the problem with that.
…yes it does. This is pretty much how things exist today. Hadn’t you noticed? People do “poach.” And sometimes when people “poach” they get told to “stop poaching” and people do stop poaching.
Which society are you talking about? Do you view copyright as the process of forcibly segregating creative expression? Do you believe “society” has no interest in forcibly segregating creative ideas? Do you see a problem that indigenous intellectual property just happens to be in the public domain simply by default?
Specific implementations of what? Trade off with what?
Nope. I’m not telling you that at all. Did you actually read my posts?
What do you mean, “equal protection?” You are comparing the “intellectual property rights” of a culture to the “intellectual property rights” of a person. There is clearly no equal measure of protection.
Yes it would be. And I can take legal steps to rectify that. Thats my point. I’m glad that you are slowly coming to understand my point. My work is protected. I may not physically “suffer” if someone uses my work in a way I don’t want them to use it. Just like Ngāti Toa doesn’t physically suffer if somebody appropriates Ka Mate. But even though I wouldn’t be physically hurt: I would still get pissed off. So why would it surprise you that Ngāti Toa would get pissed off as well?
The difference is that I have legal recourse. Ngāti Toa does not. I can send a cease and desist, I can send a DMCA takedown, I could send them an invoice. Ngāti Toa can ask them to stop and if they choose not to, then the only other recourse is to take to twitter or to facebook. This is why you often see stories about cultural appropriation go “viral.” Because without the possibility of using the mechanisms of law then the only thing left is freedom of speech.
And in a free world you are free to not see a problem with absolutely anything. Thanks for expressing your opinion.
I just don’t see how different groups being treated differently is a good thing. Ancient practices aren’t protected. Well, indigenous folks and non-indigenous folk all benefit from that do they not?
Indigenous folks don’t benefit from non-indigenous law concepts? Medical technology? The number 0? Etc. Yeah, someone outside their group may adopt a ornamentation they’ve used for 1000 years but that to me is a fair trade off.
Now modern stuff is protected. So if indigenous folks innovate something now they get equal protection from the law do they not? If they don’t I admit that’s a problem.
So yeah, if all indigenous intellectual property, modern and ancient were treated as public domain I’d see a problem.
To answer your question about specific implementation and trade off.
Can you copyright the word potato? Can you copyright a A#? No. But you can copyright a specific implementation of the usage of public domain words or notes such as a play or a symphony.
I don’t think cultures have intellectual property rights.
Ngāti Toa doesn’t have rights in whatever country he or she dwells in?
If this person were living in the USA and he or she composed something it would be as protected as your photo would it not?
And I’ve understood your point. I just don’t see why we should be paying royalties to Pythagoras’s estate for using A^2 + B^2 = C^2. I don’t see why the whole world can benefit from that concept and the dissemination of that ancient knowledge and not use a medicinal herb that a tribe in the Andes uses or an ancient ceremonial tattoo that a tribe in the Pacific uses.
…different groups are treated differently all the time. Indigenous people have been pretty much treated like shit for a very long time: and the incarcerationrates, the health statisticsprove that very point. I’d love for indigenous folks and non-indigenous folks to all be treated the same. So when indigenous and non-indigenous folks start dying at approximately the same rate in jail then you might just have a point.
A fair trade off for whom? Indigenous folks have had their land taken from them, they’ve been had their ancestors body parts and literally shipped over-seas. They’ve been marginalised in society, their culture have been appropriated without permission since colonization. They aren’t asking for a lot. Mostly, all they are asking is that you ask permission before using aspects of their culture. Isn’t granting them that simple request more than a fair trade off?
Are you still not seeing the difference between individual intellectual property rights, and collective (tribal/cultural) intellectual property rights?
Which question did I ask that asked that question?
Considering I had to provide you with a link to the wiki page on copyright, do you really think I need a lesson on how copyright works?
Isn’t that exactly what we are discussing? Have you not read my posts?
In the exact same specific circumstances as Ngāti Toa and Ka Mate? Nope. They would not. Ngāti Toa isn’t a person. Its an Iwi.
I don’t think you do.
And this response makes it clear you do not understand my point. This is a strawman. Who is asking for royalties? Who is asking for a change in the system? I’ve merely pointed out what cultural appropriation is. Stop trying to argue a point that I haven’t been making in this thread.
If that actually is your point, then I’m fine with it. There is – and should not be – any way to enforce tribal/cultural/social imagery from imitation.
I disagree with your use of the word “property” to describe these things: they aren’t. They do not belong to anyone, and – as you and I appear to agree – there are no legal protections for them.
Yes, the answer to speech is more speech: total agreement.
…why would the point that I made not be my point? The problem isn’t my words: its what you read into my words and the assumptions you made.
Do you disagree with the concept of intellectual property? It isn’t my usage of the word: its the accepted usage of the word.
And there do happen to be some legal protections in my country. (and I’ve cited an example.) They just can’t be enforced worldwide due to the lack of international agreement.
Well, part of the problem is that you are not always expressing yourself in a clear fashion.
I disagree that certain cultural images and concepts, such as the notion of the Hopi kachina, or the feathered warbonnet, or the teepee, or wampum beads, etc., are “property.” They aren’t; they aren’t “owned” by anyone.
“Harry Potter” is trademarked; “Boy wizard” is not. The former is property; the latter is not.
…what part was unclear? You simply assumed arguments I never presented.
That wasn’t the question I asked you. Do you disagree with the concept of intellectual property? If you agree with the general principal, why do you not extend that agreement to indigenous intellectual property?
So you do believe in the concept of intellectual property then? Is Ka Mate intellectual property? If not: then why not?
The strongest case for intellectual property is to protect the creative works of individuals to promote the benefit of humanity as a whole. When this is not the case, there is usually pushback against the enforcement of IP, for instance, the perpetual copyright of creative works owned by corporations, patent trolls, and abandonware.
IIP to me has shades of perpetual copyright to me in that the people benefiting from it are not the ones who created or discovered it. Many of the examples in the linked article seem to go too far in that they should be tried in the court of public opinion rather than the court of law. There’s no reason I should own the use of a traditional word any more than there’s a reason that I should be a multi-millionaire because my grandfather was born over an oil patch.
…do you not think there is a case for intellectual property to protect the cultural works of a tribe, an iwi, or a hapu, to benefit the culture and society as as whole? What in your opinion provides more benefit to humanity: Ka Mate, or Kickstarted in the Butt by Chuck Tingle?
This is a very western-centric view. In New Zealand for example Whakapapais central to Maori belief.
"Tamarau Waiari of Ngāti Koura recited 1,400 names before a 1890s Native Land Court hearing, in a dense interwoven genealogy including all living persons descended from a single ancestor about 20 generations earlier.
These individual experts had contemporaries in their whānau, hapū and iwi, with other traditional knowledge, meaning that the overall collective genealogical memory of tribes was much larger than these impressive individual examples."
From my good friend Egan (I didn’t know he had written this until I found it on google, which was pretty cool. )
“Whakapapa is identity. Whakapapa is collective. Whakapapa is also duty. We are born of others. So too were they born of others. As such we inherit not only the physical characteristics but in many ways the spiritual characteristics also.”
Whakapapa is about connections to your tribe, to your people. Can you imagine being able to do what Tamarau Waiari was able to do? Would you tell Tamarau that the haka for his iwi, created by ancestors that he could personally name, did not belong to his iwi because a group of white men got together and arbitrarily decided on a set of rules for intellectual property ownership that didn’t take his point of view into account?
Maori culture is about the collective, not the individual. In America people are encouraged to leave the home as soon as possible in displays of rugged individualism. There is strength in being able to look after yourself. But in Maori culture, things are reversed. There is strength in whanau, or family.
So framing a discussion on indigenous intellectual property around “shades of perpetual copyright” really misses the point. Fundamentally we are talking about different concepts. What benefit does an iwi get from protecting their intellectual property when in most cases all they want is to be asked permission before the “property” is used, and when that “property” is used that is is used properly?
Well I think this is a different discussion. If you accept the concept of indigenous intellectual property, then its just a matter of quibbling over the details. If you don’t accept the concept, then what more is there to discuss? Do you now understand wtf cultural appropriation means now? Do you accept that the term isn’t only used when someone takes offense but can’t find anything else to support that feeling, but it is often used by people who have what they consider genuine concern?
As I’ve pointed out several times in this thread: the court of public opinion is the prevailing court, and that isn’t likely to change any time soon. So you don’t have anything to worry about.
I don’t see what this has to do with cultural appropriation. It looks to be a traditional form of lineage tracing. If it is supposed to be secret, then any violation of this is a violation of privacy, not cultural appropriation. There is of course sometimes value to traditional knowledge, but not as often as there is to written knowledge.
And at any rate, I do not think that either non-Western or Western culture has a monopoly on cultural jealousy. Those who think that some portion of their culture can only be fully utilized by someone from their culture remind me in attitude of Western islamophobes and anti-(non-white-Anglo)-immigrationers, albeit without as much practical influence.
i was responding to the article you linked, where there were several examples of legal arguments.
Obviously, yes, I believe in the current state of the law. And the current state of the law does not permit anyone to claim blanket ideas, without rigid definitions – such as “feathered headdress” – as property.
This one specific photo you took of a man in a feathered headdress? Property. The overall concept of a feathered headdress? Not property.
It isn’t supposed to be secret. Why would you think it was supposed to be secret? To paraphrase from the OP: WTF are you talking about?
And WTF is cultural jealousy?
Who has made that argument?
I just finished saying “in most cases all they want is to be asked permission before the “property” is used, and when that “property” is used that is is used properly?”
Implicit in that statement is that some portion of their culture **can **be fully utilized by someone from outside of that culture. The complete opposite of what you have just said. Are you wanting to understand the issue or not? If you do: then at least make an effort to understand what I’m saying.
The wiki article was full of many different things. The question I asked was “Do you disagree with the concept of intellectual property? If you agree with the general principal, why do you not extend that agreement to indigenous intellectual property?” I linked to the wiki article as a primer on what indigenous intellectual property is.