Law Commons^™

The Ascension Of Indigenous Cultural Property Law, Angela R. Riley

Michigan Law Review

Indigenous Peoples across the world are calling on nation-states to “decolonize” laws, structures, and institutions that negatively impact them. Though the claims are broad based, there is a growing global emphasis on issues pertaining to Indigenous Peoples’ cultural property and the harms of cultural appropriation, with calls for redress increasingly framed in the language of human rights. Over the last decade, Native people have actively fought to defend their cultural property. The Navajo Nation sued Urban Outfitters to stop the sale of “Navajo panties,” the Quileute Tribe sought to enjoin Nordstrom’s marketing of “Quileute Chokers,” and the descendants of Tasunke …

From Nyan Cat To Nfts: Determining How Canada’S Cultural Property Export And Import Act Applies To Digital Works, Mitchel Fleming

Canadian Journal of Law and Technology

One of Canada’s principal pieces of legislation enacted to protect its cultural patrimony is not well equipped to deal with the rise of digital content creation. Digital works, particularly NFTs, pose a unique challenge to the established regime. This paper seeks to understand how these artistic developments fit within the current legislative framework and whether legislative action is needed to bring these revolutionary mediums within the scope of the Cultural Property Export and Import Act. Ultimately, the author concludes that while digital works may be captured by the Act under specific circumstances, the protectionist policies of the past are …

Intellectual Property, Traditional Knowledge, And Traditional Cultural Expressions In Native American Tribal Codes, Dalindyebo Bafana Shabalala

Akron Law Review

Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in …

Owning Red: A Theory Of Indian (Cultural) Appropriation, Angela R. Riley, Kristen A. Carpenter

Publications

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian …

Don’T Get Slammed Into Nefer Nefer Land: Complaints In The Civil Forfeiture Of Cultural Property, Victoria A. Russell

Pace Intellectual Property, Sports & Entertainment Law Forum

The Saint Louis Art Museum, known as SLAM, acquired the mask of Ka-Nefer-Nefer in 1998. Eight years later, the Egyptian Supreme Council of Antiquities called for its return on the grounds that it had been stolen from the Egyptian Museum in Cairo. SLAM refused. In 2011, the case went before the United States District Court for the Eastern District of Missouri to determine the ownership of the mask. Perhaps to the surprise of many, the court decided that the mask belongs in Saint Louis.

This Article will explain how this case was properly decided, albeit on a legal technicality. It …

Recognized Stature: Protecting Street Art As Cultural Property, Griffin M. Barnett

Chicago-Kent Journal of Intellectual Property

This Article discusses the current legal regimes in the United States implicated by works of "street art." The Article suggests an amendment to the Visual Artists Rights Act that would protect certain works of street art as "cultural property" - thereby promoting the arts and the preserving important works of art that might otherwise be at the mercy of property owners or others who do not share the interests of artists and the members of communities enhanced by works of street art.

The Case Of The Zia: Looking Beyond Trademark Law To Protect Sacred Symbols, Stephanie B. Turner

Chicago-Kent Journal of Intellectual Property

This Article tells the story of a tribe’s fight, over the past two decades, to reclaim its sacred symbol. Members of the Zia tribe, a Native American group located near Albuquerque, New Mexico, have been using their sacred sun symbol in religious ceremonies since 1200 C.E. Today, the symbol appears on the New Mexico state flag, letterhead, and license plate, and on numerous commercial products, including motorcycles and portable toilets. The tribe claims that the state appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages …

Tradition, Tech, And Transformation: Information Technologies And The Intellectual Property Of Indigenous Peoples, Sam Grey

Sam Grey

Changes brought about by the globalization of laws and markets, and the geometric expansion of technological innovation, make intellectual property issues nebulous and mercurial, to the point that keeping pace with changes in the field is a full-time pursuit requiring a high degree of skill and dedication. For nations-within-nations, as is the status of most Native groups worldwide, intellectual property presents a particularly difficult legal and political problem, as indeed intellectual property rights (IPR) regimes challenge the sovereignty of even the strongest and most 'modern' of nation-states. Authorities on the protection of traditional knowledge (TK), resources, and cultural expressions assert …

Protecting Tribal Stories: The Perils Of Propertization, Stephen D. Osborne

American Indian Law Review

No abstract provided.

Spiritual But Not Intellectual? The Protection Of Sacred Intangible Traditional Knowledge, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The use of sacred aboriginal art is nothing new. It is fairly common to see dream catchers hanging from rear view mirrors in cars. In Australia, sacred aboriginal designs are often found on tea towels, rugs and restaurant placemats. In the United States, people routinely Commercialize Navajo rugs containing both sacred and profane designs with no connection to the Navajo nation. Millions of dollars of Indian crafts imported from Asia are sold in the United States each year. Another example is the taking of sacred Ami chants by the German rock group Enigma for its song Return to Innocence. Can …

Square Pegs And Round Holes: Why Native American Economic And Cultural Policies And United States Intellectual Property Law Don't Fit, David B. Jordan

American Indian Law Review

No abstract provided.

Intellectual Property Rights And Native American Tribes, Richard A. Guest

American Indian Law Review

No abstract provided.

Raiders Of The Lost Scrolls: The Right Of Scholarly Access To The Content Of Historic Documents, Cindy Alberts Carson

Michigan Journal of International Law

In Section I of this article, I will describe the events that led to the current controversy. In Section II, I will discuss whether the content of historic documents can be classified as cultural property. In Section III, I will consider whether control of the content of these documents interferes with intellectual freedom. In Section IV, I will discuss the intellectual property arguments raised by owners and interpreters of the Scrolls. Finally, in Section V, I will propose standards for access to, and preservation of, historic documents.