Who Owns Culture?: Appropriation and Authenticity in American Law

Who Owns Culture?: Appropriation and Authenticity in American Law

Like other works of unincorporated group authorship, cultural products lack protection under our system of intellectual property law.

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?

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.

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Scafidi's central ideas - group cultural property as an analogue of individual intellectual property, and cultural appropriation as an analogue of copyright infringement - are a much more useful way of thinking about the latest controversies over food, fashions, music, and so on than what you usually read. This is perhaps unavoidable, given the incredible sociological complexities of cultural identity, but it would be really useful to have a straightforward way to distinguish the undisputedly unfair cases of Western countries refusing to return plundered Egyptian artifacts from the vastly more numerous but far less harmful and even amusing instances of infamously lame suburban white kids using black slang they heard on a hip hop album to seem cool to their friends, if only for the sake of our collective blood pressure. Concepts like real property, personal property, and intellectual property (the clearest precedent for a notion of cultural property) have long traditions in every legal system around, and we generally know where we stand when it comes to purposeful individual creations. It's at the boundaries of cultures where this gets more fraught: a white American doing another take on the Cinderella folktale is legally fine as long as they don't use Disney-specific imagery, and in moral terms, perhaps they're even heroic as an individual creator proudly defying a greedy megacorporation. This is where one major weakness of most debates on cultural appropriation becomes unignorable: most examples you read about are too parochial and America-centric to be very useful for thinking about the broader logic of cultural exchange. White, Anglo-Saxon, Protestant, educated, healthy, straight males from reasonably affluent Mid-Atlantic or Midwestern backgrounds allegedly have "no" accents, eat "normal" food, wear "regular" clothes, play "popular" music, engage in the "usual" pastimes, share "common" opinions, and have "ordinary" tastes." There are countless articles that implicitly or explicitly use this framework to treat white Americans as all-powerful active appropriators and other groups or cultures as passive appropriatees, watching helplessly as their hard-won cultural products like music/food/slang/mannerisms are absorbed and retransmitted without any acknowledgement of the source, let alone remuneration. However, outright cultural theft - in that important legal sense of one person taking something that belongs to another person away from them - is such a minuscule proportion of all cultural exchange that reducing the billions of interactions between different people that occur every day all over the planet to the moral equivalence of an actual crime is neither accurate nor useful. Breaking the issue down in such a calculated fashion might seem flip, but given the attention that Disney movies and their like play in the broader culture, examples like that neatly illustrate the potentially unbounded complexity of the concept of cultural appropriation, and why so many people decide that the easiest, safest, and fairest way to handle these complicated questions is to avoid them entirely by declaring that cultural appropriation doesn't really exist, and that everything not adequately covered under the existing copyright regime is fair game for everyone. This is one reason why cultural appropriation debates get stuck so quickly: if you think that any aspect of any culture belongs to everyone, then arguments to restrict its use of some cultural element, or even require acknowledgement that it's being used, can feel like lawyering on someone else's behalf, with no remedy readily available or even possible. "Intellectual property at common law is a protected category of intangible ideas embodied and reproduced in tangible form, while cultural products are the frequently unprotected expressions of shared values or experiences that are created and reproduced by a source community in either tangible or intangible form." - Time limits on protections should be altered, perhaps extended to the life of the source community, or made renewable periodically. Besides, let's keep in mind that it's hardly a given that the current power structure will last forever, and it's entirely possible in 200 years that we'll have a completely different cultural hierarchy where white Americans are not on top; any proposed new system of rules for cultural exchange should account for this to avoid burdening future artists, musicians, and creators with the hangups of the past.

I never hear anyone complain about "cultural appropriation" whenever someone uses something made by whites or participates in a specific European culture.

  • English

  • Law

  • Rating: 3.86
  • Pages: 208
  • Publish Date: May 18th 2005 by Rutgers University Press
  • Isbn10: 0813536057
  • Isbn13: 9780813536057