Hadley on Whitmill v. Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law @DrMarie_IP @uonlawschool

Marie Hadley, Newcastle Law School, University of Newcastle (Australia), has published Whitmill v Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law at 42 European Intellectual Property Review 223-229 (2020). Here is the abstract.

The Māori-inspired tattoo at the heart of the copyright infringement case of Whitmill v Warner Bros. has attracted allegations of cultural appropriation in Aotearoa/New Zealand. An examination of the Māori cultural appropriation claim that surrounds the tattoo and its invisibility throughout the Whitmill v Warner Bros. legal proceedings, shows how the legal system does not receive Indigenous cultural claims over the cultural imagery and arts styles that inspires outsider imagery as an intellectual property interest.

Download the article from SSRN at the link.

Hadley on Tribal Tattoos and the Politics of Cultural Appropriation Claims @DrMarie_IP

Marie Hadley, Newcastle Law School, has published Tribal Tattoos and the Politics of Cultural Appropriation Claims. Here is the abstract.

This article explores the nature of cultural appropriation claims as a statement of possession over cultural property and a performative utterance that resists oppression. A close study of the aesthetics and ethics of tribal tattoo imagery, and in particular the tattoo created by artist S. Victor Whitmill for former world heavyweight boxer Mike Tyson, is used to reflect upon the politics of alleging cultural appropriation. Empirical fieldwork with Māori tā moko artists is used to show that cultural appropriation claims are unstable property claims whose politics exceed the merely possessive. Critical perspectives on performativity expand the inquiry. It is argued that seeking inspiration from the art of the Other, as tribal tattoos do, is problematic – not so much because of the appropriation of cultural property per se but rather because doing so recreates colonial dynamics of demand, desire, and oppression.

Download the article from SSRN at the link.

Appropriation of Native American Culture

Angela Riley, University of California, Los Angeles, and Kristen A. Carpenter, University of Colorado Law School, are publishing Owning Red: A Theory of Indian (Cultural) Appropriation in the Texas Law Review (2016). Here is the abstract.

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 the cultural expressions and resources of another. While these and other incidents are currently in the headlines, American Indians often experience these claims within an historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands and artifacts, bodies and religions, identities and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use of their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright, to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated - albeit incompletely - the taking of certain Indian lands and has also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision-makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, this Article situates intangible cultural property claims in a larger history of the legal dispossession of Indian property - a phenomenon we call “Indian appropriation.” It then evaluates these claims vis à vis prevailing legal doctrine, and offers a normative view of solutions, both legal and extralegal.

Download the article from SSRN at the link.