Indigenous intellectual property, art, architecture, cultural icons and modern copyrights

Indigenous intellectual property, art, architecture, cultural icons and modern copyrights

The concept of indigenous intellectual property is one of the stranger notions floating around in the intellectual property world.

The Artwork of Prince Harry

Ayers Rock
Ayers Rock

A BBC News report as well as an August 19, 2003 Guardian article by Peter Shadbolt and Peter Collins entitled Harry paints his way into outback row raised the issue of “indigenous intellectual property” with regard to some artwork of the British Royal family’s Prince Harry. This artwork was clearly “inspired” by Australian Aboriginal Art, especially the use of the symbol of a lizard.

Indeed, we looked at the work and found it be quite good for a young man.

But as written in the Guardian:

“Anne Loxley, a Sydney-based curator specialising in Aboriginal art, said she expects a large test case about indigenous intellectual property in the near future.

‘With the law going the way it is, even Prince Harry could spark something off,’ she said, adding that the prince had made the fatal error of appreciating the aboriginal works for their aesthetic value alone.”

Robert Eggington, Dumbartung Aboriginal Corporation, has investigated alleged cases of artistic “cultural exploitation” and is quoted as saying:

“When we see our symbols – important symbols for us that represent lightning, stars and waterways and other important religious entities – being used on underwear or toilet seat covers, it can be very disappointing. The only thing we’ve got left is our culture and when we see this it strips our work of its integrity and its dignity,” he said.

It appears to us as if the above critical comments stem from people whose profession involves Aboriginal art in some way. It is hard to see how the average Aboriginal is being “culturally exploited”, as if the artistic depiction of e.g. Eskimo igloos or American Indian “totem poles” was somehow culturally demeaning. Perhaps there is a fine line between “business” and alleged “indigenous rights”?

All Art is Based on Something Previous

Totem Pole
Totem Pole

A lizard painted in a certain art style can not be viewed as “indigenous intellectual property”. Such a standard would prohibit depiction of almost anything at all coming out of man’s civilizational history. Art is a manifestation of society as it is and has been. All art is inextricably entwined in the milieu from which it arises. Who in art has ever created anything totally new which was not based on things that existed before? What artwork did not take its motive force from the artist’s world at the time of the creation of the artwork?

Who Owns What ?

In addition to the above problems, we have the legitimate question of who owns what?

Does the fact that someone comes – or alleges to come – from a given cultural heritage give him ownership rights to any kind of cultural icons in a particular society? For example, one Aboriginal might approve of Prince Harry’s art, another might be against it. So who is to decide? Does mere “belonging” to a cultural group give one rights over the cultural works of one’s long passed ancestors? That would be a most unique legal concept.

pyramids egypt
Pyramids of Egypt

Much of the history of civilization is art in its broadest sense. Who owns the cultural heritage of Lascaux or Chauvet? Do we have any evidence that the Magdalenians – who painted these cave paintings – were the direct ancestors of the French of today ? and if so, which group of French – those in Bordeaux or those in Alsace? Indeed, who were the cave painters of Europe? What about the cultural ownership of rock art at Valcamonica in Italy? There are well over 100,000 prehistoric art figures represented at this prehistoric site. Would all of these figures be protected by so-called indigenous intellectual property rights?

On another cultural level, we could then also ask: who were the architects that actually built the Pyramids of Egypt in ancient days? Were they the ancestors of today’s Egyptians, or of another people, as a study of the features, hair color and genetic information – such as DNA and blood type – of the pharaohs might indicate? These issues in the history of art and architecture are surely not completely resolved.

Cross on a Goblet
Cross on a Goblet

What about religious feelings and art ?

As for the injury to religious feelings caused by art, just imagine if the Christian cross were regarded to be “indigenous intellectual property” of e.g. the Roman Catholic Church and that pictures of the cross – even in art – could only be used as the Church permitted. We would be back in the dark ages of mankind when religious ignorance, intolerance and superstition ruled the earth. Indeed, this kind of abject primitivism is still a portion of the belief system of certain cultures in which artistic depiction of various kinds is prohibited. Such belief systems are trying to take mankind back to the days before art – and that is maybe about 20,000 to 30,000 years ago. These are the forces against civilization.


What about music ?

As for the “proper use” of art, imagine if the music of e.g. Beethoven, Bach, Mozart, Brahms, or Strauss were suddenly limited to people who played that music “properly”, i.e. with the “proper respect” as determined by some government or other musical authority. One can always find willing censors to tyrannize artists and the public.

From our perspective, the question is easy to decide when we deal with indigenous symbols of great antiquity. NO ONE really has a better legal claim to that property than another person.

What about modern art and architecture ?

How about the Statue of Liberty, for example? The Statue of Liberty was a gift of France to the United States, based on an original idea by Edouard de Laboulaye, a Professor of Law. If “indigenous intellectual property” actually existed, who would own the indigenous intellectual property rights to this Grand Old Lady?

The issue gets a bit more complicated as we reach the modern period.

Coca Cola Warhol
Coca Cola ®
Warhol Art
and Copyright

Campbell's Soup
Andy Warhol
focused on
cultural icons

Ponder if Andy Warhol’s famous rendition of a Campbell’s Soup ® can or of Coca-Cola ® bottles is copyright infringement per se? Not only was Warhol’s art intended to be “art”, but it was also extremely successful financially and thus was surely a “commercial exploitation” of a trademark.

On the other hand, it was an honest attempt to portray artistically the age and society in which Warhol was living and in which we all still live. It is an age marked by tin cans and Coke bottles ®.

[Personally, the LawPundit is a Campbell’s Soup ® and Coca-Cola fan ®.]

Cultural Icons

The legal issue of the intellectual property status of “cultural icons” is not a hypothetical one and is found discussed in 1 J. INTELL. PROP. 61 by Alyson Lewis, J.D. 1999, University of California, Hastings College of the Law, in “Playing around with Barbie ® : Expanding Fair Use for Cultural Icons“.

Barbie Example
Standard Barbie Doll Style

Malted Barbie
“Malted Barbie”
Is the Photo a
Infringement ?

A 9th Circuit decision recently dismissed the case in which Mattel had sued a photographer for making photos of Barbie dolls in “unusual” poses, one of which we have pictured here. The doctrines of free speech, fair use and copyrights collided in that case, with copyrights clearly losing.

Control over Artistic Creations

Obviously, there are limits to the amount of control anyone has on their artistic creations and what the world does with those creations. The legal issue is: how much control is and should there be? As written at the ArtsJournal quoting the Los Angeles Times (Newsday) 01/08/03:

“A Great Threat To Modern Culture: “The current artistic culture, which is replete with references, borrowings and parody, has collided with a corporate and legal culture that is bent on protecting intellectual property. If Andy Warhol were working today, he would be facing litigation from Campbell’s soup, Church & Dwight (the makers of Brillo pads) and every corporation whose logo he appropriated. ‘Virtually all art builds on previous work, either overtly or covertly’.” Los Angeles Times (Newsday) 01/08/03

True, true, but ponder that Warhol’s most famous Campbell’s Soup painting was later auctioned for over $1 million at Sotheby’s. Warhol could, after all, have pictured an “unknown” soup, could he have not? So, Warhol WAS in fact “capitalizing” on “cultural icons”.

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