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Who Owns Culture?

Who Owns Culture?: Appropriation and Authenticity in American Law

Susan Scafidi
Copyright Date: 2005
Published by: Rutgers University Press
Pages: 208
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  • Book Info
    Who Owns Culture?
    Book Description:

    It is not uncommon for white suburban youths to perform rap music, for New York fashion designers to ransack the world's closets for inspiration, or for Euro-American authors to adopt the voice of a geisha or shaman. But who really owns these art forms? Is it the community in which they were originally generated, or the culture that has absorbed them?While claims of authenticity or quality may prompt some consumers to seek cultural products at their source, the communities of origin are generally unable to exclude copyists through legal action. Like other works of unincorporated group authorship, cultural products lack protection under our system of intellectual property law. But is this legal vacuum an injustice, the lifeblood of American culture, a historical oversight, a result of administrative incapacity, or all of the above?Who Owns Culture?offers the first comprehensive analysis of cultural authorship and appropriation within American law. From indigenous art to Linux, Susan Scafidi takes the reader on a tour of the no-man's-land between law and culture, pausing to ask: What prompts us to offer legal protection to works of literature, but not folklore? What does it mean for a creation to belong to a community, especially a diffuse or fractured one? And is our national culture the product of Yankee ingenuity or cultural kleptomania?Providing new insights to communal authorship, cultural appropriation, intellectual property law, and the formation of American culture, this innovative and accessible guide greatly enriches future legal understanding of cultural production.

    eISBN: 978-0-8135-3785-6
    Subjects: Law, Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface and Acknowledgments
    (pp. ix-xvi)
  4. Introduction
    (pp. 1-4)

    Community-generated art forms have tremendous economic and social value—yet most source communities have little control over them. Euro-American authors adopt the voice of a geisha or shaman, white suburban youths perform rap music, and New York fashion designers ransack the world’s closets for inspiration. While claims of authenticity or quality may prompt some consumers to seek “cultural products” at their source, the communities of origin are generally unable to exclude copyists through legal action. Like other works of unincorporated group authorship, cultural products lack protection under our system of intellectual property law. But is this legal vacuum an injustice,...

  5. Chapter 1 The Commodification of Culture
    (pp. 5-12)

    America is a nation of nations. Our imagined community rests not only on a unifying mythology of freedom and independence but also on intertwined tales of regional and ethnocultural character.¹ We are Italian-American mafiosi and African-American gangsta rappers, WASP country clubbers and Jewish intellectuals, gay decorators and Latin lovers, rednecks and computer geeks. These labels reek of stereotype and foment prejudice, yet they remain the signposts of multicultural America—often (although not always) with the advice and consent of the labeled.²

    The origins of the ethnic, regional, social, and cultural groups that make up the American landscape are as diverse...

  6. Chapter 2 Ownership of Intangible Property
    (pp. 13-22)

    An understanding of the concept of property ownership is second nature to any child who has ever shared a sandbox.Mycorner,mybucket, andmysandcastle define the terms of engagement, and any interloper who disregards these claims is likely to provoke open warfare. These apparently simple assertions of ownership—over a sandy bit of permanent real estate, a personal object that can be taken home at the end of the day, and an embodied architectural design, respectively—nevertheless represent a complex system of property law. The categories of real property, personal property, and the relative newcomer intellectual property...

  7. Chapter 3 Cultural Products as Accidental Property
    (pp. 23-37)

    At a holiday concert performed by the Turtle Creek Chorale in Dallas, not all of the music was audible. After simultaneously singing and signing “Silent Night,” the performers fell silent and repeated the piece—in sign language only. The blue lighting in the symphony hall, the graceful movement of hundreds of hands in unison, and the familiar melody echoing in the minds of the audience combined to produce a powerful synthesis of communication and choreography. For many in attendance, the dramatic use of silence by a gay men’s chorale also invoked the memory of those members of the group whose...

  8. Chapter 4 Categorizing Cultural Products
    (pp. 38-51)

    Alex Haley writes that when his ancestor Kunta Kinte began to consider marriage, he hesitated at first over the form of the ceremony. Unlike the dances, songs, prayers to Allah, and talking drums to relay the news that would have accompanied a wedding in his home village in Africa, a slave ceremony in the antebellum South would probably involve “‘jumpin’ de broomstick’ before witnesses from slave row, which seemed ridiculous to Kunta for such a solemn occasion.” On his wedding day, Kunta nevertheless linked arms with his bride and obeyed the command to “jump into de holy lan’ of matrimony,”...

  9. Chapter 5 Claiming Community Ownership via Authenticity
    (pp. 52-66)

    Canal Street in lower Manhattan, as the informed tourist knows, is perhaps the nation’s most concentrated retail outlet for counterfeit merchandise and bootleg recordings. “Prada” bags, “Fendi” wallets, “Chanel” sunglasses, “Rolex” watches, and DVD copies of the blockbuster movie opening next week are all available for remarkably small sums of cash. Even occasional crackdowns on the flow of illegal merchandise, like the public destruction of confiscated goods by a fleet of bulldozers in a Mexico City soccer stadium in 1994, do not seem to lessen the availability of inexpensive copies of designer merchandise or other items.¹ Some of these products...

  10. Chapter 6 Family Feuds
    (pp. 67-89)

    For Irish Americans, Saint Patrick’s Day is an opportunity to celebrate civic, cultural, historical, political, and social achievements with a public parade. For gay and lesbian Irish Americans, March 17 is also a day of protest. Ever since the Ancient Order of Hibernians denied a request from the Irish Lesbian and Gay Organization (ILGO) to march in New York City’s 1991 parade, the debate over who is entitled to assert authentic Irish-American identity and participate in the parade has made national headlines. The 1991 compromise, in which New York Mayor David Dinkins persuaded the parade organizers to allow the gay...

  11. Chapter 7 Outsider Appropriation
    (pp. 90-102)

    Helena, Arkansas, has got a right to sing the blues—at least since a federal court dismissed a class-action lawsuit against the city. A group of African-American organizations and individuals originally filed suit in 1999, seeking an end to Helena’s annual blues festival. According to the complaint, the city had been involved in “a racially conspiratorial process which, in effects, kidnaps, steals, and disrespects, for the purpose of private profit, the musical legacy of African-American citizens in Phillips County; a portion of the Arkansas-Mississippi Delta.”¹ Much of the dispute appears to have revolved around the financial impact of the festival...

  12. Chapter 8 Misappropriation and the Destruction of Value(s)
    (pp. 103-114)

    On January 21, 1984, Michael Heller, a staff photographer for the Santa FeNew Mexican, flew at low altitude over the Pueblo of Santo Domingo and photographed a ceremonial dance. TheNew Mexicanpublished the resulting photos on at least two occasions, the second time with a caption inaccurately describing the event as a “pow-wow.” In response, the Pueblo filed suit in federal district court, alleging trespass, violation of the Pueblo’s ban on photography, and invasion of privacy.¹ Comparison of the Pueblo’s legal complaint with the statements of its members and supporters, however, reveals that the available causes of action...

  13. Chapter 9 Permissive Appropriation
    (pp. 115-125)

    Each JanuaryThe Watchtower, an official magazine of the Jehovah’s Witnesses, prints a chart detailing the accomplishments of members in spreading information about their beliefs.¹ Witnesses in more than 230 countries collectively spend over a billion hours annually preaching, in addition to devoting time to the dissemination of literature and the baptism of new members.² Indeed, you may personally recall politely but firmly shutting the door on an eager believer who was attempting to share the good news. Nevertheless, personal outreach is an intrinsic part of being a Jehovah’s Witness, and the normative behavior of each church member includes the...

  14. Chapter 10 Reverse Appropriation of Intellectual Properties and Celebrity Personae
    (pp. 126-134)

    Actor Leonard Nimoy, known to millions as a member of the originalStar Trekcast, has written two professional memoirs. The 1975 version,I Am Not Spock, addresses the “competition” between actor and famous character and discusses the philosophical and professional difficulties caused by popular conflation of the two.¹ Fans were unsympathetic, to say the least; Nimoy reports receiving letters that said, “We made you and we can break you!”² Twenty years later Nimoy publishedI Am Spock, a longer and more cordial analysis of a longer and still more successful association between himself and his alter ego, punctuated with...

  15. Chapter 11 The Civic Role of Cultural Products
    (pp. 135-146)

    Across America, intellectual property professors are having a dystopian moment. It started positively enough when the Internet Revolution, sparked by advances in technology, produced a tremendous outpouring of creative artistry and commerce. Because the new technologies encouraged ordinary folks to engage in cutting and pasting, sampling, downloading, and otherwise copying preexisting works, however, this madcap digital quilting bee made some large, powerful content owners quite nervous. As a result, efforts to enforce the protections granted through copyright, trademark, and patent law increased, both by fighting technology with technology and by waging legal battles. Congress, federal courts, law professors, and editorial...

  16. Chapter 12 An Emerging Legal Framework
    (pp. 147-158)

    Shakespeare famously likened the world to a stage, and its inhabitants to players on it. Had he been a modern visual artist, however, he might have imagined instead an interactive art installation and a steady stream of visitors—or at least remembered to thank the set and costume designers. Society does not continually reinvent itself on an empty platform but is instead enmeshed in systems of property rights, market exchange, and material culture, tangible and intangible. The cultural contribution of voluntary immigrants, involuntary immigrants, and indigenous peoples to the American national project not only asserts the presence of those cultural...

  17. Appendix: Defining Property
    (pp. 159-162)
  18. Notes
    (pp. 163-188)
  19. Index
    (pp. 189-204)
  20. Back Matter
    (pp. 205-205)