Bita Amani:
Forbidden Arts & Subjugated Knowledges: On the Polemics of Intellectual Property
IP rights are
state-dependent, property-dependent models so make false promises of equality.
History of art as propaganda: art can support war or speak truth to power. Iran
has criminalized expression: rapping, singing, dancing. IP rights are
contingent and state dependent in ways that have nothing to do with the merits
of expression or invention. State doesn’t just “incentivize”—it criminalizes
and tries to generate particular social outputs. Governing people to people
relations is a very different thing from state undermining personhood by
criminalizing dancing.
Q: is this project
about taking away the mythos of IP as equalizer or something else?
A: has broader
implications, including for the concept of incentives. Possible implications
for how we think about refugees, internationalization of rights.
Aman Gebru, Cultural
Appropriation as Passing Off
Motivation started
with OMG Girlz case described as cultural appropriation: OMG Girlz (human
group) v. OMG Dollz that copied their looks. Initial reaction: of course there’s
no claim, as court concluded, but should there be? There’s no authoritative
definition of cultural appropriation, but overlap in definitions: power imbalances
between person using expression and source community (which might not even like
that identification), lack of understanding of user, offensiveness (which may
be based on decontextualization of meaningful symbol).
Mostly this should
be handled through public opinion, public shaming. But should be a limited right
against commercial cultural appropriation. Mostly no, because of the benefits
of cosmopolitanism (Kwame Anthony Appiah): cultures always borrow; there is
nothing “authentic” about a culture and we shouldn’t want there to be, because
that creates stasis when dynamism is needed.
Spectrum: diffused,
when multiple communities claim a symbol; targeted, when there’s only one. Also
a spectrum from noncommercial to commercial—a tattoo on one’s body versus
commercial use. He is suggesting a right against targeted commercial use. Justin
Timberlake’s cornrows shouldn’t be actionable. Turban = diffused. But Urban
Outfitters v. Navajo Nation would count as targeted commercial exploitation;
they used the term “Navajo” to identify the underwear they were selling.
Current doctrines:
passing off/false representation/43(a); Indian Arts & Crafts Act. Mexican
legislation deals w/cultural appropriation. WIPO negotiations on traditional
cultural expressions.
Definitions are challenging, including use in commerce—but that hasn’t stopped
us in other IP.
Marketa Trimble: is
Kokopelli diffuse or targeted b/c multiple tribes see meaning in it?—would communities
have to fight each other over what is theirs?
A: exclusive
interest creation may not be natural to source communities, which is a risk.
Jeremy Sheff:
Remedies—do you see the primary remedy here being injunctive or monetary, and
why? Also, some of these controversies seem more like reverse passing off than
passing off—introducing something to a majority community that doesn’t
recognize it and therefore thinks it’s the creation of the appropriator.
A: Injunctive relief,
though at an early stage in thinking. Money isn’t at the top of minds of
communities.
Sheff/Calboli: it
depends on the community!
Jeanne Fromer: looking
at a snapshot of a moment of time doesn’t address how these symbols came to be
associated with a community, probably through diffusion. There are ways to justify
that but you should explain why you take this as a given.
A: comes from using
an alien worldview for those communities—the legal system. If there’s targeted
appropriation in the present, we can redress it now.
Q: 2016 Kenya law
has a detailed framework for protection, bulldozing through all these issues.
It’s on the books but never tested in courts.
Q: what happens when
brands represent source communities? Gucci: maybe Gucci is reflecting Italian
culture with an archive of its own.
A: maybe we would
say there wasn’t fraudulent intent.
RT: Totally
understand why it seems like definitional challenges shouldn’t stop this if it
didn’t stop other IP rights, but still: The definitional challenges should have
stopped us, and two IP rights can make two wrongs. As Jennifer Rothman has written, different IP
regimes define commercial use differently. You seem to consider fashion/selling
clothes to be commercial; why isn’t selling tattoos also commercial? Should
Timberlake’s hairdresser or the makers of the kente-themed scarves sold to
American politicians be liable? (What if
Timberlake stars in an ad? What if he stars in an ad wearing cloth sold by a
person from the relevant community?)
Irene Calboli: Americans
will be skeptical, so be thorough in definition of community/review previous debates.
What happens when Seminoles are divided on what should happen? Italian culture
is bastardized every day, but there are benefits—cultural goodwill.
Rosenblatt: consider
dividing types—the secret and the sacred are useful concepts.
Xiying Tang:
Deception might not come into it: the question is whether white guys should be
making these things, not whether people are confused about who’s making it.
Deborah Halbert: The
Anarchist Cookbook v. Panther Press: Violence, Books, and Copyright
Originally published
1971: recipes for acid, bomb, booby trap. Left-wing publisher v. right-wing
publisher during the Vietnam Era. Alleged infringement of right-wing publisher’s
150 Questions for a Guerrilla, written by “the man who trained Castro.” 150
Questions seems to have copied from an Army manual itself; the Anarchist
Cookbook used redrawn versions and written narratives like recipes. Defendants won after a day-long trial before a
judge, based on lack of substantial similarity in protected expression.
Panther (renamed Paladin)
continues to publish, including the book Hit Man that was the subject of a
lawsuit in the 4th Circuit. Publisher came to deeply regret
publishing the Anarchist Cookbook.
Angela Riley, Sonia Katyal,
Rachel Lim, Indigenous Misdescription:
Dilution/erasure of
tribes. Here, facilitated by TM law.
Trademarks and indigeneity:
three ironies. (1) registration—tribal names as such cannot be registered by
tribal entities or anyone else because of 2(b)’s prohibition on registering
insignia—though recognized tribes are neither foreign nations, States, nor
municipalities, 2(b) still applies. But literally anyone, including the tribe
itself, can register as a mark if it functions as a mark.
This leads to
another irony of misappropriation, producing the phenomenon of indigenous
misdescription. Tribal names are registered as commodities.
Purpose of study:
how many names of tribes correspond to registrations not owned by tribes. Also
explore indigenous branding from cultural property perspective. TM’s background
principles, e.g., secondary meaning, perpetuate inequality of ownership.
Dataset: 9025
registered and pending marks 1891-2022 compared to names of 574 federally
recognized American Indian tribes and Alaska Native Villages. Only about 8% are
owned by tribes; dominated by nontribal entities.
Three types of
misdescription: misappropriation; misdisparagement; misdesignation.
Misappropriation:
using tribe name to brand product/service: Boeing Apache Helicopter, Chippewa
Boots, Jeep Grand Cherokee—can exclude the tribe itself from the Register.
Misdesignation: brand based on secondary association—pima cotton named after
Pima tribe; lots of brands use “pima” to brand themselves, Wyandotte chicken
breed, Mohawk hairstyle. Misdisparagement:
anti-indigenous slur/stereotype used as branding (Eskimo pies, Iroquois Indian
Head, Shawnee Baker’s Pipe of Peace)—most susceptible to public shaming.
Focused on brands,
but other part of the study looks at real property—naming of cities and states
and their relations to tribal entities.
Given the 8%
statistic, we wanted to reconsider the limits on the Indian Arts & Crafts
Act, which doesn’t extend to all products/services but does recognize this as a
problem. PTO has tribal insignia database but only for insignia, not extending
to actual words. Also: the limits of doctrines of misdescriptiveness and
deception (fixated on moment in time); don’t provide protection for tribes
because they don’t seem to link to the tribe because there are secondary
meaning rules that prefer “brand” over history of name. Effects on lexicon of
tribal names!
Failure to function
as a potential opening to ask how TMs are operating in the marketplace. Enabling
more registration for tribes? Policing the use of TMs that might be associated
with them? Output: a law review article and toolkit for tribes.
Jeremy Sheff:
registrants who were entities created by tribes v. tribal members? One story
that often comes up is conflicts b/t groups and members of the group. What is
the historical arc? How many have been cancelled for nonuse/failure to renew?
A: we limited our
comparison to tribal entities—it might be that members own some of them. Very
hard to adjudicate. History: based on the data, many are dead. Still
interesting to see the kinds of images that were popular at certain points. 1930s-1040s,
1970s popularity.
Rachel Dixon: TESS issues:
missing dead marks.
Jeanne Fromer: “lands
and brands” is a great concept. Never reflected on this rule—speak on
justification for ban on insignia? There’s a difference b/t saying no one can
own it and saying that an entity can’t own it. Why isn’t it being enforced?
A: need more research on treatment of tribes as dependent domestic entities.
RT: say more about
why you concluded that 2(b) bars registering names of tribes? If it’s 2(b), it’s
absolute, even as against the tribe and even for governmental functions. So
wouldn’t you want 2(b) expanded as to nontribal entities? [Someone else, sorry I can't remember who, gave a better framing: you could consider the model of 2(c), assuming Elster comes out as we expect.] Separately: Secondary meaning as conquest in
the M’intosh v. Johnson case?
A: secondary meaning
as a prism for all these kinds of things is part of the study.
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