Confession: Though I read many posts and tweets or articles
at any given time, each year I try to read what I consider to be at least one
or more significant books pertinent to the 21st century learning.
Understanding copyright, fair use, and Creative Commons licensing are
important to me as a writer, researcher, faculty member, trainer, and
artist. Those roles were the motivators for reading Who Owns Culture? where known faculty Susan Scafidi explores
the conundrum of copyright and patent protection for communally created works.
I intentionally did not read reviews, and I decided my
learning goal was to come away with what I felt were important take-aways from
her work.
My takeaways from her work:
1) There are three types of property: real, personal, and
intellectual (Scafidi 160).
2) Copyright law provides protection for individuals, but
products held in community have suffered. The provision for commonly held
property is called “concurrent ownership” (162); this mechanism is useful for
defense with external challenges, but does not define mechanisms for managing
disputes within a particular group. The
author expresses the opinion that there is still more work to be done in this
area by the legal community.
3) An important concept to understand in cultural context is
the evolution of cultural practice into a definable product. An example has
been cases related to the use of the American flag. Over time commercial,
artistic, and political demonstrations involving the flag provided restrictions
that have currently been overturned in favor of their use for open express and
commercial use. (The most current controversy of this nature was captured in SC
where public outcry resulted in the removal of the flag from the state
capitol.)
4) These two entities have been established to ensure the
livelihood of indigenous artisan and their products in the marketplace: Ten
Thousand Villages and the Native Artist Registry with the US Patent Office.
5) There is still potential for power struggles within a
community as to who can define community membership. Also, there are still
questions as to decisions to keep certain items in secret, or release them to
the public, and challenges to those accompanying decisions that might develop.
6) “Outsider Appropriation”, “Misappropriation”, and
“Reverse Appropriation” relate to cases where persons outside a culture take
features from another culture into a product, or use it in such a way that puts
something into the public market that was never intended or causes disrespect
or inaccuracy by the way it is presented.
Current examples:
·
Outsider Appropriation: The Valentino Ad in the
March 6, 2016, New York Times Sunday
Styles Section (p.3)
·
Misappropriation: A professor filming
non-public tribal ceremonies: http://www.sfreporter.com/santafe/article-11510-the-professor-and-the-pueblo.html?utm_content=buffer2857c&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer
·
Misappropriation: Another
recent example comes from an episode in Longmire, found on Netflix. Walt has
his friend tie him to a tree in a way participants in the Sundance would be
tethered to a tree during that sacred ceremony. The context for this practice
is not only incorrect, it is inappropriate for Plains tribes who observe this
ceremony.
·
Reverse-Appropriation: Individuals who are fans
of a certain characters or works may influence the development of the persona,
but also create their own spin-off creations, known as Reverse Appropriation
(p. 127). Sometimes such creations are protected under the auspices of
fair-use, and at other times the creators of the series or work provide more
specifications as to what is allowed. In some cases, court challenges have been
made against the public creators, like the author of Done Gone With the Wind, a
work in the voice of Miss Charlottes created half-sister and slave (The author,
not the estate of M Mitchell ultimately won the right to publish the work.)
Yes, this area of law continues to be better defined as our
global property practices continue. As for the realm of cultural preservation, the author notes a
model to further rights for distinct cultural practices is UNESCO’s Convention
for the Safeguarding of Intangible Cultural Heritage.
Interested in what others did write about this work? Searching
by the title + reviews might find you some sources: I particularly thought this
one was helpful as it summarizes the contents addressed in various chapters—not
so much a review but a guide to the ideas: http://www.jstor.org/stable/j.ctt5hj7k9
Bibliographic Entry
Scafidi, Susan. (2005) Who
Owns Culture?: Appropriation and Authenticity in American Law. Piscataway,
NJ: Rutgers University Press.
