Are Indigenous Arts and Culture Protected by the Copyright Act?

By Isaac Kort-Meade

In 1996, Tlingit artist Clarissa Rizal handmade an intricately woven coat using a traditional Ravenstail (Yéil Koowú) pattern. There is documented use of this pattern by the Tlingit, Haida, and Tsimshian people of Alaska for at least 200 years, and its use likely extends much further. The coat was registered with the U.S. Copyright Office in 2019 after Rizal’s death. Later that year, the Sealaska Heritage Institute (SHI) –– the owner of the copyright at the time –– discovered that fashion giant Neiman Marcus was selling a coat with an almost identical pattern. The “Ravenstail Knit Coat” is listed on the company’s website for $2,555. SHI brought suit in U.S. District Court in Alaska in April 2020 alleging copyright infringement.

This case, however, is not as simple as it may seem. Native American tribes are not governed by every federal law. Whether or not the Copyright Act applies to tribal members is still an open question. In general –– based on the rule laid out by the Supreme Court in Federal Power Commission v. Tuscarora Indian Nation–– federal laws apply equally to Indians absence clear evidence to the contrary. The 9th Circuit established three exceptions to this rule in Donovan v. Coeur d’Alene Tribal Farm: when the law touches purely intramural or governmental matters, where application of the law would abrogate treaty rights, and when legislative history proves congressional intent to exclude Indians from the law. No caselaw has directly addressed the application of the Copyright Act to tribes.

While the second two exceptions seem to indicate that the Copyright Act should apply to tribes (no tribe’s treaty has directly addressed IP and the Copyright Act contains no language applying it to Indians), the first factor is less clear. Copyrightable works may constitute both intramural matters –– such as traditional weaving patterns kept within the tribe –– and interstate matters –– such as works created for sale. Protection of copyright is a traditional government function, but most caselaw has centered around clear “police power” functions such as policing and education. In addition, some tribes use ceremony as part of government function. For example, the Haudenosaunee Iroquois people used traditional songs and personal relationship ceremonies as an integral part of decision-making and conflict resolution within the tribe. This type of artistic expression may be purely intermural and so exempt from the Copyright Act, but other more common forms of art may not be.

A situation where the work of a singular tribal creator has been appropriated may be a simple question. The complication, however, arises when a tribe itself is trying to claim copyright protection for a work which has no clear creator. Many tribal works, like songs, ceremonies, or artifacts have been passed down over generations and have no clear and obvious owner. Most are considered owned by the tribe itself, rather than one individual. For many tribes, including notably the Hopi of Northern Arizona, tribal traditions are closely guarded and sparingly shared with the outside world. Federal copyright protection is one way for these tribes to assert ownership over these works and protect cultural resources. The doctrine of aboriginal title may allow the recognition of these property ownership schemes, but without protection from the Copyright Act, tribal creators may still struggle to safeguard their creations off tribal lands.

Tribal access to IP is still a difficult policy question. Copyright law on its face assumes that property is owned by one person or entity. This is contrary to the views of many tribes, who tend to see property, especially cultural resources like ceremonies or music, as owned by the entire tribe communally. Many tribes have existing management of IP rights, much of which is meant to push back on the imperialistic nature of cultural appropriation. Most of these IP schemes place the ownership of cultural property in the hands of the tribe itself rather than one person. Coming up with a workable solution to these conflicting concepts is an important part of solving this problem.

Access to IP protection is a vital part of sovereignty. In fact, the right to copyright and patent protection is enshrined in Article 1, Section 8 of the U.S. Constitution. Protecting a creator’s copyright does not just ensure that they are able to receive value and compensation for their work––it also recognizes the inherent value and connection creators have to their creations. The value a tribal creator attaches to their representation of a traditional weaving pattern or their performance of an ancient ritual cannot be measured in money.

In January, SHI and Neiman Marcus settled on the copyright litigation, so we won’t get a judicial decision on the merits of the case. As a result, a few questions still remain open: Can tribal creators take advantage of the protections of the Copyright Act? Will the Copyright Act protect cultural artifacts from unauthorized use? Answers to these questions may depend on new agreements between tribes and the U.S. government, or even a reformulation of the Copyright Act. Whatever the solution, protecting the sovereignty of Indians in the US depends on recognizing and guarding traditional property schemes while ensuring creators can take advantage of strong federal laws to defend their works from appropriation.