cultural appropriation

Trevor Reed on Fair Use and Cultural Appropriation of Indigenous IP

Matthew L.M. Fletcher

Trevor Reed has posted “Fair Use as Cultural Appropriation,” forthcoming in the California Law Review, on SSRN.

Here is the abstract:

Over the last four decades, scholars from diverse disciplines have documented a wide variety of cultural appropriations from Indigenous peoples and the harms these inflict. And yet, there are currently no federal laws other than copyright that limit the appropriation of song, dance, oral history, and other forms of intangible culture. Copyright is admittedly an imperfect fit for combatting cultural appropriations – it is a porous form of protection, allowing some publicly beneficial uses of protected works  without the consent of the copyright owner under certain exceptions, foremost being copyright’s fair use doctrine. This article evaluates fair use as a gate-keeping mechanism for unauthorized uses of culture. As codified in the 1976 Copyright Revision Act, the fair use doctrine’s four-part test is supposed to help fact finders determine whether an unauthorized use of another’s work is reasonable in light of copyright’s goals of promoting  cultural production. But, while the fair use test has evolved to address questions about the purpose behind an appropriation, the amount and substance of the work used, and the effects of the appropriation on the market for the work, the vital inquiry about the “nature” of the original work and the impact of unauthorized appropriation on its creative environment has been all but forgotten by lower federal courts. Combining doctrinal analysis, settler-colonial theory, and ethnographic fieldwork involving ongoing appropriations of copyrightable Indigenous culture, this article shows how this “forgotten factor” in the fair use analysis is key to assessing the real impacts unauthorized appropriations have on culturally diverse forms of creativity. Thus, if we are committed to the development of creativity in all of its varieties and natures, a rehabilitation of the forgotten factor is both urgent and necessary.

Looks like important reading to me.

ICT: “Boy Scouts ‘have been one of the worst culprits’ of cultural appropriation”

Matthew L.M. Fletcher

Here.

Interesting Post at American Indians in Children’s Literature

Kate Fort

A redundant title, given that Debbie Reese’s blog is always interesting, and people should just be reading it all the time–so here’s an excuse to call attention to it again. This post describes the response of a game designer to her criticism of one of his game designs. And it’s hopeful and positive.

New Student Scholarship on Appropriation of Native Culture

Matthew L.M. Fletcher

Brian Sheets has published “Papers or Plastic: The Difficulty in Protecting Native Spiritual Identity” in the Lewis & Clark Law Review (also SSRN).

Here is the abstract:

Sellers of Native ceremonies offer the opportunity to non-Natives to participate in ceremonial traditions with roots in Native spiritual communities—for a price. These “plastic shamans” have appropriated some Native ceremonies, sometimes with fatal results. Commodifying these spiritual practices removes important communal identities from their sources and furthers the stereotype that Native communities and their cultural practices are relics of the past—a concept reinforced through divorcing cultural practices from vibrant, modern Native societies struggling to maintain an identity. In response to ceremonial appropriation by plastic shamans, some Native spiritual communities have sued operators of botched ceremonies, and have further advocated for legal protection of Native ceremonies in Western legal concepts. However, Western law misses the mark. While spiritual identity is offered protection through exemptions to generally applicable laws, the Western requirement of a bright-line object to represent spiritual identity does not allow for the protection of an intangible ceremony from appropriation. Furthermore, Western concepts of intellectual property are market based, and directly conflict with the intent to protect Native ceremonies from being commodified. These conflicting values demonstrate the tension in protecting spiritual identity. And when Native cultural composition, transformative ceremonial practice, and distributions of ceremonies between Native groups are taken into account, the difficulty becomes even more apparent.

This Comment explores the approach of current Western laws seeking to protect cultural heritage, and then applies one Native proposal through a First Amendment analysis to  demonstrate the difficulty of protecting Native spiritual identity in Western law. Some of the current means of protecting and preserving Native spiritual identity make  appropriation even easier through documentation requirements. While there is a compelling reason to protect Native ceremonies from appropriation, Western courts are limited in their ability to favor one group’s religious practices over another. This Comment concludes that while difficult to protect in law, public awareness is the most likely cure to prevent shopping for spirituality—enlightenment and selfactualization cannot be bought off-the-shelf with the clerk asking at checkout “paper, or plastic?”

Jurors Settle on Negligent Homicide Over Manslaughter in James Arthur Ray Sweat Lodge Case

Adrea Korthase

From The AP:

FLAGSTAFF, Ariz. (AP) — Four jurors who heard months of testimony in a self-help author’s criminal trial were convinced he was guilty on three counts of manslaughter, but couldn’t sway the other eight who didn’t believe prosecutors had proven the charges.

The jury spent about 10 hours deliberating before settling on the lesser charge of negligent homicide, placing the blame on James Arthur Ray for the deaths of three people following Ray’s sweat lodge ceremony near Sedona, Ariz.

***

Prosecutors staked their case on the heat inside the sweat lodge and on Ray’s conduct, using his own words recorded during the weeklong event in October 2009 against him. The defense accused authorities of botching the investigation and failing to consider that chemicals typically found in pesticides factored into the deaths.

***

Dr. Matthew Dickson, who reviewed autopsy records and medical reports of the participants for the prosecution, gained major points with the jury because of his experience with heat-related illness and exposure to pesticides, Lepacek said.

Dickson testified he was 99-percent sure that heat caused the deaths, and that the signs and symptoms of the victims were inconsistent with exposure to organophosphates, a pesticide compound.

“Expert” on Sweat Lodges Opines in HuffPo

Kate Fort1 Comment

H/T Indianz

Jonathon Ellerby answers questions about sweat lodges to respond to the deaths at the James Ray sweat lodge.  While Ellerby does attempt to distinguish between non-Native and Native sweat lodges, and discuss the cultural appropriation problems with new age sweat lodges, commenter  Nishnabe replies succinctly:

“More Indians and minorities on Huffpo would negate the need to find ‘experts.’  Geesh.”