The Indian Arts & Crafts Act as a trademark statute

Jennie D. Woltz, The Economics of Cultural Misrepresentation: How Should the Indian Arts and Crafts Act of 1990 Be Marketed?, 17 Fordham Intell. Prop. Media & Ent. L.J. 443 (2007): The most impressive piece of student writing I've read in a while. This note considers the IACA as a trademark and false advertising statute, going beyond the standard analysis (the law requires membership in an enrolled tribe as a condition of labeling arts & crafts "Indian-made," which creates problems of over- and under-inclusiveness for the "authenticity" that most buyers seek) to consider how the IACA compares to the Lanham Act. She concludes that IACA's rules on issues like strict liability should differ from Lanham Act rules, even though courts so far have treated IACA as just another trademark/designation of origin law. While Woltz's proposed solutions seem problematic, they are so precisely because the question of defining authenticity is so bound up with issues of power and control.

Trademark and advertising law always contain tensions between protecting consumers and regulating relations between businesses; IACA makes the tensions more explicit and more personal, and thereby offers us an opportunity to analyze what we really care about when we call ad claims "false" or "misleading."