Wright, Shelley --- "Borrowed Power: Essays on Cultural Appropriation by Bruce Ziff and Pratima v Rao" [1997] SydLawRw 30; (1997) 19(4) Sydney Law Review 580

BORROWED POWER: ESSAYS ON CULTURAL APPROPRIATION by Bruce Ziff and Pratima V Rao, Rutgers University Press, New Brunswick, NJ, 1997, ISBN 0 8135 2372 9

SHELLEY WRIGHT[*]

In their opening essay, Introduction to Cultural Appropriation: A Framework of Analysis, the editors of Borrowed Power: Essays on Cultural Appropriation give a number of examples of what is meant by cultural appropriation. These include:

• The taking of sculpted marble friezes from the Parthenon in Athens by order of Lord Elgin and their removal to England where they were eventually sold to the British Museum. After repeated requests and considerable diplomatic strain between Greece and the UK, the British still refuse to return the Elgin Marbles.
• The recording by an American folksinger of an ancient Senegalese folk song, the composer of which is not known.
• The taking of an Amazonian Indian arrow poison, used in hunting, by a pharmaceutical company from which the muscle relaxant d-turbocurarine is patented and marketed.
• The publication of stories by a white writer belonging to a Canadian West Coast Native band, which can customarily only be told by certain elders.
• The painting by a non-Aboriginal artist of works based on images taken from Native cultures in North America including patterns and symbols found on carpets, earthware, blankets and clothing, and Native people dressed in traditional clothing.
• The adoption by the Nahua peoples of Mexico of the discourses of colonial Spain, assimilating cultural practices of European origin.
• The publication by W P Kinsella of stories set on the Hobbema Indian reserve in Alberta, Canada where some of the fictional characters are given names of real people living on the reserve.
• The adoption by audiences in America, and around the world, of musical forms derived from the artistic expression of former slaves brought to America from Africa, including jazz, blues, soul, rap and other forms.[1]

Many other examples are given in the essays contained in this collection. As the editors point out cultural appropriation can mean many things. Part of the problem is the tenuousness of the word culture. As they say, [t]hat term is as indeterminate as any found within the social sciences.[2] The examples given by the editors are themselves problematic, in that the cultures referred to are ambiguous and ownership highly contested. For example, the Greek government consistently argues that the Elgin Marbles are rightfully the property of the Greek people, were stolen by a representative of the British government, and should be returned. The British argue, among other things, that the Marbles are part of a universally valuable culture which should be available to everyone, particularly given the importance of classical Greek culture to the development of European culture more generally. In addition, the British claim that Greece cannot guarantee safe and secure custody of the Marbles given problems of vandalism and pollution endemic to the city of Athens. The adaptation of cultures to the influences of a hegemonic imperial power is arguably the necessary and inevitable result of colonialism. But the influences work both ways, as many of the examples demonstrate.

For Indigenous peoples, cultural appropriation, including the taking of ancient artefacts and human remains, the desecration of sacred sites, and the use of intellectual property as contained in stories, art works or medicinal plant products without permission or compensation, is a serious problem. This collection of essays is an excellent and timely analysis of these issues focusing particularly on an Indigenous perspective. The editors were careful to include essays by Indigenous writers themselves, as well as non-Indigenous commentators and experts. Both male and female perspectives are included and a variety of different approaches are represented. This provides a valuable balance to much of the literature in this area which has, until recently, been largely the product of non- Indigenous perspectives on Indigenous cultures. In addition, it also adds a female voice to what has been a debate overwhelmingly dominated by males. Some of the essays have been previously published while others are the work of writers who are already well-known in their respective fields (as with James D Nason on cultural property). Other essays appear to be original and valuable contributions solicited for this collection alone.

The essays are grouped according to cultural forms and major issues within the debate over cultural appropriation as it is currently developing. Part 1 deals with The Appropriation of Music and Musical Forms including essays by Perry Hall and Anthony Seeger on African-American music, and ethnomusicology and the law. Part 2 deals with Appropriation in Art and Narrative and includes essays by Lenore Keeshig-Tobias, Rosemary J Coombe, M Nourbese Philip, Kwame Dawes and Joane Cardinal Schubert on the stealing of native stories, post-colonial struggle and the problem of identity, the taking of stories and racism, and how cultural appropriation can form the basis of re-appropriation or cultural renaissance. Part 3 is on Appropriation in Colonial and Post-colonial Discourse, an extremely important aspect of the discussion. There are two essays by Jonathan Hart on cultural appropriation, translating and resisting empire, and by J Jorge Klor de Alva on the experiences of the Nahua peoples of Mexico and the appropriation of the (European) Other. Part 4 is on Appropriation in Popular Culture and includes essays by Nell Jessup Newton and Deborah Root on the representation of the Lakota leader Crazy Horse in beer advertisements and subsequent litigation in Tribal Court in the US, and on White Indians. Part 5 looks at The Appropriation of Scientific Knowledge with essays by James D Nason on Native American control of esoteric knowledge and by Naomi Roht-Arriaza on the taking of scientific and technical knowledge from Indigenous peoples and local communities. Finally, Part 6 deals with the more well-known side of the discussion in Appropriation and Tangible Cultural Property with another essay by James D Nason on repatriation of cultural objects in an American context, and an example of a successful collaboration between a private collector, an Indian Nation and a museum in the US (by Lynn S Teague, Joseph T Joaquin and Hartman H Lomawaima). Finally there is a select bibliography based on each of the essays by Pratima V Rao.

The essays appear to have been selected or requested as a means of complicating the current discourses of cultural appropriation and misappropriation. Much of the debate, until recently, has concentrated on the taking of cultural artefacts, museum policies and international efforts to control the taking of artefacts and valuable cultural objects. Within the last ten years or less there has been an additional contribution by a very few intellectual property lawyers who have tried to include issues of the taking of currently produced creative works, particularly from Indigenous peoples, as an important side of the problem. Indigenous peoples themselves have long been concerned with the disappearance and destruction of their cultures, languages, religions, scientific and technical knowledge and resources through the appropriation of land and the oppression of their communities by colonial influences. These influences are not only European. Indigenous communities in decolonised countries such as Indonesia, Malaysia, India, Burma, Thailand, Bangladesh, much of South America and parts of Africa, as well as the Pacific region, are under increasing threat of appropriation and disappearance as a result of economic development policies, environmental destruction, and nationalistic culture and language laws in many countries.

Australian and New Zealand experiences are not represented in these essays. Although the focus is largely North American, many of the same issues are being seen as increasingly important in this part of the world. In Australia there has been some litigation of intellectual property issues in the Courts, a rather unusual development. Johnny Bulun Bulun, a well-known artist from Central Australia, was able to obtain some compensation from the makers of t-shirts aimed at a tourist market on which one of his works of art had been reproduced without his permission, or even with his knowledge.[3] As a result of Bulun Buluns initiative, fifteen other Aboriginal artists were able to join with him in a settlement for compensation involving similar types of reproduction. The taking and use of Aboriginal artworks on a wide variety of artefacts sold to tourists and other buyers is so commonplace in Australia as to be ubiquitous. Very rarely has permission or consent to reproduce been obtained from either individual artists or their communities, and compensation or some form of royalty is almost never paid.

In the case of Yumbulul v Reserve Bank of Australia[4] a reproduction of a work of art, the Morning Star Pole, by Terry Yumbulul appeared on an Australian ten dollar note. Such poles are usually used in funeral ceremonies for important people. Use and reproduction of the poles are governed by customary law. This particular pole had been (and is currently) displayed in the Australian Museum in Sydney, as authorised by the Galpu clan group. What was not authorised was the use of a picture of the pole on money. Mr Yumbulul unsuccessfully sued both the Aboriginal Artists Agency (who had licensed the work on behalf of the artist) and the Reserve Bank of Australia for copyright infringement. The Federal Court, in failing to find that there had been infringement, did note that Australian law does not adequately protect the interests of Aboriginal communities under current copyright law. Mr Yumbulul was severely criticised by his own community for allowing the reproduction to happen, and the issue proved very divisive. Mr Bulun Bulun had also suffered considerable emotional and spiritual distress as a result of the misappropriation of his artwork.

The most recent case involving the taking of Aboriginal art has been described as a kind of mini-Mabo on the taking of Aboriginal art. This is Milpurrurru, et al v Indofurn, et al[5] or the Carpets Case. Eight very well-known Aboriginal artists had artworks created by them reproduced either exactly, or in a debased form, on carpets manufactured in Vietnam and imported and sold in Australia without the artists permission, contrary to sections 38 and 39 of the Copyright Act.[6] Five of the artists were deceased by the time the action for copyright was brought and were represented by the Public Trustee of the Northern Territory. It was argued in the case that the works could not be protected because they drew on traditional designs and were therefore not original nor products of the individual authors. The Federal Court dismissed this argument and found in favour of the artists. In addition, the Federal Court also found that there had been substantial reproduction of some of the artworks which were not exact replicas of the originals. In doing so the Court took into account the significance of those features of the works which had been reproduced based on their importance within the Aboriginal cultural traditions within which the artists had lived and worked. In addition the Court awarded damages based not only on the commercial value of the artworks, but also on the personal and cultural harm which the unauthorised reproductions had caused. The award of damages was made collectively to all the artists and their representatives to divide it up in accordance with community and cultural standards, as well as on the basis of individual harm. To date, no compensation has in fact been paid. Nevertheless, this is a landmark case in that it specifically approaches copyright law in a flexible and culturally sensitive manner, indicating that courts in Australia (and elsewhere) can use existing laws to protect Aboriginal cultural creation, at least to some extent and in some cases.

In 1994 the Australian government under a Labour administration took the initiative, in consultation with the Aboriginal and Torres Strait Islander Commission [ATSIC], to find ways of better protecting the production of Aboriginal arts and crafts. There was released an Issues Paper, Stopping the Rip- Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples.[7] Submissions were received and the matter is now being furthered by the Indigenous Cultural and Intellectual Property Project, a joint initiative of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) and ATSIC. The mandate of this Project is considerably wider than that discussed in Stopping the Rip-Offs as it also includes questions of protection of scientific and technical knowledge, human genetic material, cultural property more generally and the protection of sacred sites and objects. A Discussion Paper was released in 1997 entitled Our Culture/Our Future: Proposals for Recognition and Protection of Indigenous Cultural and Intellectual Property[8] which provides a valuable review of law and policies relating to these issues in Australia.

New Zealand has also seen some important developments in this area, including hosting the first Indigenous international gathering on cultural and intellectual property which resulted in the Mataatua Declaration of 1993 which states that cultural and intellectual property are of central importance to all Indigenous peoples and is crucial to the right of self-determination. This, and other documents and initiatives by Indigenous peoples, stress that laws and policies in relation to cultural property must be made by Indigenous peoples themselves, or at least in close consultation with them. Since then New Zealand has undertaken discussions with Maori groups to reform trademarks law to prevent the registration of culturally offensive marks. In addition, the Waitangi Tribunal is now hearing a major claim by several Maori individuals and groups relating to all aspects of the ownership of cultural and intellectual property.

The Ziff and Rao book provides a helpful selection of critical and analytical perspectives on these issues, as well as valuable information about developments in Canada, the United States and Mexico. Issues of cultural appropriation and representation are extremely difficult. Major concerns of Indigenous peoples include how material can be shared, or not shared, depending on community as well as individual requirements; the issue of consent, what it consists of, who is entitled to give it and how it is obtained; matters of compensation where cultural material is shared; the problem of individual versus community needs and values; and finally, the major issue of colonial and neo-colonial attitudes on the part of dominant cultures. Mainstream cultures in North America, as well as in Australia and New Zealand, have difficulty understanding how important these issues are from an Indigenous perspective, and how crucial protection of culture, language, religion, knowledge and creativity is for the self-determination, human rights and development of Indigenous peoples. It is not only greed and deliberate theft or destruction which is a problem, but also ignorance and the blindness of members of the dominant culture in failing to recognise and respect the different cultural needs of others.

One hopeful prospect in Australia is the development of Mabo type reasoning, and the expansion of native title, to include cultural and intellectual property.[9] Although current debates over native title do not give rise to an optimistic prognosis for expansion of Aboriginal rights, it is nevertheless important to remember that such discussions are at least partly determined by temporary political expediency, and that long-term prospects for positive change are still possible. It is clear from the Mabo judgement itself that matters of cultural interpretation and custom are crucial to any determination of native title issues:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.10

Protection of Aboriginal customs, laws, cultural practices and artefacts are therefore crucial even if only from an evidentiary perspective. In addition, Aboriginal culture is itself intimately and inextricably connected to the land. Native title cannot exist without Aboriginal cultural heritage as an essential incident to it. Surrender of native title means surrender of Aboriginal culture, a matter of absolute and crucial urgency among Aboriginal peoples themselves. But it should also be a matter of urgency within the wider Australian community as our economic development and national identity so largely and clearly rests on an Aboriginal infra-structure of appropriation and representation. Australianness cannot exist in any authentic context without a serious and honest reappraisal of our past, present and future relationships with the Indigenous inhabitants of this continent.

But such reappraisals, or even reconciliation, cannot be achieved without considerable pain and difficulty. The nature of the search cannot be to find some elusive concept of certainty which is no more possible on the level of culture than it is in land rights. The Ziff and Rao collection of essays provides a serious and diverse range of views, both Indigenous and non-Indigenous, which may be useful in sorting through issues of cultural misappropriation and misrepresentation in an Australasian context. As they say in their introductory essay:

What is cultural appropriation? Why should we care about it? How, if at all, should we respond? As the book progresses, the different modes of appropriation will become apparent; so, too, will the conceptions of community that the authors adopt. Our hope is that these values will shine through. Some of the contributors reflect concerns about cultural degradation. They claim that appropriators steal their cultural soul, misrepresent them, silence their voices, purport to speak for them. Because of this, important cultural goods may be weakened and destroyed. Some of the essays are based on aesthetics and stewardship. These claim that cultural treasures are sometimes diluted, altered, ruined, commodified; that sacred practices are trivialised; and that their sacredness is ignored or profaned. Other essays adopt a stance based on material deprivation. Appropriators abscond with the profits of someone elses intellectual property. They free ride on the property of others without proper compensation or recognition. Allied to this are claims of sovereignty in which these assertions are heard: We conceive of these cultural goods as ours and so have the right to control their use. Through appropriation, these sovereign claims are ignored.[11]

These, and other issues, are canvassed in these essays. I unreservedly recommend this book as a valuable contribution to the debate. I believe it should be required reading for anyone, either within the legal community or in a wider context, who is interested in Aboriginal reconciliation, cultural appropriation and national development. It is important that we, as members of the dominant culture, listen to these claims and statements and think how they may affect our own cultural conceptions, and misconceptions. They are as important as questions of native title, sovereignty, self-determination and the nature of Australian constitutional life. As has been said in another context:

For North West Coast Indian Artists, the act of creativity comes from the cosmos. That is what I have been told by the old people. When Im making Art, I am one with the universe. You can see it in the work, if you look with your heart, as well as your mind. If you really pay attention, you can get the message - and make it your own, without diminishing it or appropriating it. If we pay attention, First Nations Art will remind us of this basic rule for being a human being: When I diminish others belongingness in the universe, my own belongingness becomes uncertain. Canada is an image which hasnt emerged yet. Because this country hasnt recognised its First Nations, its whole foundation is shaky. If Canada is to emerge as a nation with cultural identity and purpose, we have to accept First Nations Art, and what it has to tell us about the spirit and the land. Our Art is our cultural identity; its our politics. The late George Manuel said, This land is our culture. I add to that, Our culture is this land. Whether you acknowledge it or ignore it, the land and the culture are one. Land claims have to be settled, before Canadians can look at themselves in the mirror and see an image they would be proud to see.[12]

I would suggest that what is said here by a Canadian Indigenous artist is as true for Australia and New Zealand as it is for Canada.

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[*] University of Sydney
[1] Ziff, B and Rao, P V, Borrowed Power: Essays on Cultural Appropriation (1997), at 23.
[2] Id at 2.
[3] (NTG 3 of 1989), Darwin (Fed Ct); Noted in Golvan, C, Aboriginal Art and Copyright: The Case of Johnny Bulun Bulun (1989) 10 European Intellectual Property Review 346.
[4] [1991] FCA 332; (1991) 21 IPR 481.
[5] [1994] FCA 975; (1994) 30 IPR 209.
[6] Copyright Act 1968 (Cth).
[7] Attorney-Generals Department (Canberra, Australia, October, 1994).
[8] Janke, Terri, Principal Consultant with Michael Frankel and Co for AIATSIS and ATSIC (1997). Also available on the Internet via http://www.icp.lawnet.com.au.
[9] See Gray, S Wheeling, Dealing and Deconstruction: Aboriginal Art and the Land Post-Mabo (1993) 63 ALB 10; Puri, K, Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action (1995) 9 IPJ 293; Wright, S, Intellectual Property and the Imaginary Aboriginal in Bird, G, et al. Majah: Indigenous Peoples and the Law (1996) at 129; also see discussion in Janke, T, above n8 at 6769.
[10] Mabo v Queensland [1992] HCA 23; (1992) 107 ALR 1 at 42 per Brennan J.
[11] Above n1 at 24.
[12] Jensen, Doreen (Aboriginal name Hahl Yee) Art History in Campbell, Maria, et al, Give Back: First Nations Perspectives on Cultural Practice (1992) 15 at 1920.