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Stuart Schüssel

Abstracted from: Stuart Schüssel, Copyright Protection's Challenges and Alaska Natives' Cultural Property, 29 Alaska Law Review 313 (December, 2012) (Student Note)(182 Footnotes)

      There is something immediately distinctive about the Northwest Coast Barbie. While she shares the same impossible physique and high heels common to Mattel's iconic product line, the Northwest Coast Barbie sports a dark complexion, and her black hair falls onto an earthy, patterned “Chilkat blanket.” The box identifies this particular Barbie as a member of the Tlingit; a brief description of the Tlingit follows.

      This doll illustrates just one way in which Americans are familiar with Alaska Native art and imagery, even if they have never been to Alaska and do not know any Alaska Natives. The significance of some items, like totem poles, is common knowledge. A hawk designed in the artistic style native to the Pacific Northwest serves as the logo for the Seattle Seahawks. Trinkets and souvenirs in Alaska Native styles are regularly purchased by the thousands of tourists who visit Alaska each year.

      Beyond its popular appeal, Alaska Native art enjoys attention from academics and art collectors. Museums around the country hold large collections of Alaskan art; the Smithsonian's National Museum of the American Indian boasts over a thousand Alaska Native objects. Alaskan art also features prominently in Native American art auctions, with a Tlingit rattle fetching $625,000 last year at Christie's.

      Given the popularity and economic importance of Alaskan arts and crafts, Alaska Native communities would benefit from the use and sale of their cultural property. Additionally, like other indigenous peoples, Alaska Natives seek to block the use of images and objects with sacred and religious significance. Therefore, some groups of Alaska Natives, most notably the Sealaska Heritage Institute, have taken measures to protect their cultural property and have begun to call for increased intellectual property protection. Unfortunately, most of the works these groups seek to protect are not eligible for copyright protection because of conflicts with copyright requirements. For instance, the requirement of fixation in a tangible medium of expression would preclude protection for oral folklore and songs. Additionally, many of the remedies these groups desire, such as the ability to block the use of sacred images, cannot be provided under current copyright laws. Therefore, Alaska Natives and other indigenous groups would have to obtain intellectual property-like protection through a sui generis regime, deviating from the existing framework.

      This issue is not limited to Alaska. Indigenous intellectual property issues have attracted global attention. Despite many efforts to address indigenous communities' need and desire to protect their intellectual property, the international community has not reached a consensus about how to accomplish this goal. The World Intellectual Property Organization (WIPO) continues to be involved in efforts to develop a framework to approach and address these issues. Indigenous peoples' concerns range across all areas of the intellectual property spectrum, and, as will be discussed in more detail, the protection of any particular item may simultaneously raise questions that span many areas of intellectual property law.

      Outsiders commonly exploit the intellectual property of indigenous persons. Many medical discoveries have relied on indigenous people's knowledge of the properties of local plants. From this body of knowledge ethnobotanists and other researchers have analyzed rainforest plants, hoping to identify chemical compounds to serve as active ingredients in pharmaceuticals. Beyond serving as source material for pharmaceutical research, traditional cultural practices can become commodities themselves: Bikram Choudhury studied yoga, selected several positions, then copyrighted his arrangement of the poses to develop the yoga program that bears his name. Yoga studio owners who want to use the Bikram yoga sequence, or to use the name Bikram Yoga, must license from Choudhury. Although the validity of his copyright has been challenged, lawsuits against infringing studios have settled, leaving questions over the validity of Bikram's copyright unresolved.

      The Bikram Yoga example highlights a greater issue: scholarly research on indigenous knowledge can receive copyright protection. Thus, if an academic catalogues dance series or rituals, that could be copyrighted. When indigenous groups seek to use the collections as source material, they may need to secure the permission of the copyright owners to make use of the indigenous groups' own historic cultural property. Therefore, Bikram Choudhury's actions unsurprisingly prompted “a large scale effort to catalog the estimated 1500 asanas, yoga body positions, in order to prevent [future] cases.”

      This Note will survey several topics pertaining to Alaska Natives' cultural property. Section I provides an overview of copyright, the area of American intellectual property law most related to the protection of artistic property, focusing on copyright's requirements and its theoretical grounding. Section II discusses generally Native American views on property and the difficulties encountered when seeking to apply copyright law to Native American works. This Section will contrast the United States' unwillingness to judicially recognize collective property rights with two Australian cases. Section III highlights two existing methods to accomplish some of the goals of Alaska Native groups: the Silver Hand authentication program, a collective mark, and Native American Graves Protection and Repatriation Act (NAGPRA), which allows tribes to seek trade secret-like protection for their sacred cultural property. Section IV surveys recent, or current, topics of interest to Alaska Natives, highlighting that disputes could be resolved without needing to alter intellectual property law.

* * *

      Because Alaska Native works will typically fail to satisfy copyright protection's threshold requirements, they will generally be unprotected by intellectual property laws. This leads to several possible conclusions. Some parties seek to confer copyright protection onto indigenous cultural property by lessening the restrictive requirements of copyright law. Accordingly, some scholars have called for the establishment of self-contained sui generis statutory schemes to provide an exception to an otherwise default rule. While adapting intellectual property laws to better accommodate indigenous interests could yield results going forward, this may prove difficult to implement. Furthermore, the constitutionality of removing material from the public domain has been challenged, so retroactive application of any broadened intellectual property laws would likely draw constitutional scrutiny.

      An alternative approach, which this Note cautiously advocates, is to preserve what is essentially the status quo. Some evidence suggests that greater copyright protection does not necessarily incentivize production. Alaska Natives can seek to avail themselves of other remedies, like NAGPRA, and programs such as the Silver Hand, to monitor and protect the use of sacred imagery and traditional styles. The presented case studies highlight the lack of litigation resulting from the use of Alaska Native artwork. Instead, and particularly important in an age of remix culture, Tlingit Barbie and the contemporary artists illustrate the benefits of collaboration and discussion.

      In order to effectuate a rebirth of Native arts and culture, it may be better to allow access to the bulk of cultural property, reserving only the sacred elements through trade secret-like protection.


. Duke University School of Law, J.D. expected 2013; Brown University, Sc.B. and A.B., 2008.