A Book Worth Reading About Intellectual Property Rights: Who Owns Culture

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 21^st 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.