Note: “Marking the Infinite,” a stunning exhibit of works by contemporary women artists from Aboriginal Australia is on view until September 9, 2018 at the Phillips Collection in Washington, DC.

In spring 2018, a Utah high-school student named Keziah Daum caused a controversy when she tweeted out some prom pictures in which she was wearing a traditional Chinese dress.¹ Some Twitter users argued that it was an improper “cultural appropriation” for someone who is not Chinese to make such a fashion choice.² There were many, however, who objected to this characterization and agreed with Ms. Daum’s statement that she was only expressing “love for the culture.” ³

Arguments of this kind have become commonplace, as prominent examples of alleged cultural appropriation seem to be a daily occurrence.⁴ The actions that trigger these debates are sometimes nuanced,⁵ but there are also many instances where the behavior at issue is clearly indefensible.⁶ Unfortunately, the Indigenous Peoples of Australia ⁷ have often been the victims of the latter brand of conduct.⁸ Accordingly, some have argued that their traditional art should be legally safeguarded from potential cultural appropriations.⁹ Achieving this goal, however, may be easier said than done.

I. BACKGROUND: ART, SPIRITUALITY & CULTURAL INSENSITIVITY

In order to understand why special legal protection may be warranted for Indigenous art, one first needs some understanding of its subject matter. Indigenous art is often “steeped in ancient cultural traditions.”
¹⁰ Indeed, some of the most revered Indigenous art focuses on the “Dreamtime,” the period when, according to Indigenous tradition, “Ancestral Beings” created the earth.¹¹ The “Wandjina paintings” of the Indigenous Peoples in the Kimberley region of Australia are one example of important Dreamtime-rooted art.¹² As a concept, these paintings originate from the belief that the Wandjina (“the creator ancestors of a number of the Aboriginal Peoples of the Kimberley region”) used self-portraits on cave walls and rock formations to mark the locations of their deaths.¹³ Modern iterations of these works are created during sacred rituals, and are intended “to ensure the continuity of the Wandjina’s presence and . . . the arrival of the monsoon rains.” ¹⁴ Thus, art is an integral component of Indigenous culture and spirituality.

Indigenous art now receives considerable attention from non-Indigenous communities as well.¹⁵ In spite of whatever economic benefits it may provide for Indigenous communities, this popularity has also led to unfortunate appropriations of Indigenous art.¹⁶ For example, sacred Indigenous images have been used without authorization on surfboards, currency, and carpets.¹⁷ Uses such as these are offensive to the Indigenous community ¹⁸ and should be universally alarming, given the historically persecuted status of Indigenous Peoples.¹⁹ However, due to key incompatibilities between Indigenous artistic traditions and the Eurocentric laws to which they are subject, it is not always clear from a legal perspective how these kinds of offenses can be prevented.²⁰

II. INTELLECTUAL PROPERTY LAW PROVIDES INCOMPLETE PROTECTION

Intellectual property law is the most obvious of the potential legal avenues for protecting Indigenous art, but it is far from a perfect fit for a number of reasons.²¹

First of all, most western intellectual property laws “involve commodification and financial gain,” making them a less-than-ideal candidate for Indigenous Peoples who “would not base the sanctity or importance of their [traditional cultural expressions] in commercialization.”²² The commercial focus of these laws also makes it difficult to fashion a satisfactory remedy for improper uses of Indigenous art because money will often be incapable of alleviating the “deep offense” caused by such appropriations.²³

Second of all, it can be difficult to settle questions of authorship and ownership using western intellectual property laws. Consider, for example, the Wandjina paintings discussed above.²⁴ According to Indigenous tradition, “the paintings were done by the Wandjina themselves.”²⁵ Under western intellectual property law, it is impossible to reconcile this belief with a claim of authorship in a contemporary Wandjina painting by an Indigenous artist in connection with a traditional copyright infringement suit.²⁶ Western principles of intellectual property ownership are also in conflict with Indigenous artistic traditions. Yumbulul v Reserve Bank of Australia ²⁷ illustrates this principle. This case arose when images of a Morning Star Pole created by Indigenous artist Terry Yumbulul were used on a bank note celebrating the 200th anniversary of European settlers arriving in Australia.²⁸ The court eventually dismissed the suit based on its finding that Mr. Yumbulul had consented to the use, even though there were indications that “he did not fully appreciate the implications of what he was doing in terms of his own cultural obligations.”²⁹ The appearance of such a sacred image on a bank note (one memorializing the beginning of colonialism in Australia, no less) was upsetting to the Indigenous community, which typically exercises a great deal of control over how its art is reproduced.³⁰ However, these concerns did not have any effect on the outcome of the case because Mr. Yumbulul, according to Australian copyright law, was the sole owner of copyright in the Morning Star Pole, and was therefore authorized to enter into the licensing agreement.³¹ The court seemed to understand that this was a problematic result, but recognized that there was no alternative due to the lack of recognition in Australian intellectual property law for the Indigenous principle of communal ownership.³² Thus, western intellectual property law does not mesh with Indigenous traditions regarding authorship and ownership.

Furthermore, the protection that western intellectual property laws provide is often too short in duration to effectively safeguard Indigenous art.³³ For example, the U.S. Constitution states that artistic works may only be protected “for limited Times.”³⁴ This temporally finite protection is incompatible with the needs of Indigenous Peoples whose art has a history that extends back many thousands of years.³⁵

Thus, traditional western intellectual property laws appear to be incapable of providing complete protection for the art of Indigenous Peoples.

III. POSSIBLE SOLUTIONS AND LIKELY LIMITATIONS

In light of the shortcomings of western intellectual property law, some scholars have suggested that “a new, specific body of law” comprised of “an amalgam of various legal philosophies” is required to fully protect Indigenous art.³⁶ One can certainly imagine how a legislature could combine the non-economic essence of moral rights law, trademark law’s perpetual term of protection, and ownership concepts from copyright law to create a new brand of protection focused on Indigenous art.³⁷ In fact, Australia may pursue just such a measure in the not-so-distant future, as members of Parliament have recently opened an investigation in response to demands that the sale of fake Indigenous art be made illegal.³⁸ Advocates for reform are pushing for legislation that would be similar to the Indian Arts and Crafts Act, which prohibits the sale of knock-off Native American goods in the United States.³⁹ This kind of policy would be a positive step for the Indigenous community because it would address the high volume of inauthentic goods on the market and prevent unfortunate cases like Mr. Yumbulul’s by adopting the Indigenous Art Code as the standard for determining whether uses of Indigenous imagery are appropriate.⁴⁰

Nevertheless, any law of this kind would probably only apply to commercial uses of Indigenous art, and laws protecting free expression would likely prevent it from extending any further.⁴¹ Laws that abridge free expression in the name of protecting intellectual property are permissible, but they typically have to be limited.⁴² For example, under American law, intellectual property statutes are essentially required to include a fair use limitation, virtually ensuring that there will always be at least some unauthorized uses of the protected subject matter.⁴³ Thus, the wholesale prevention of unauthorized uses of Indigenous art may be legally impossible.

IV. WHAT CAN BE DONE NOW

This is not to say that the Indigenous community is completely out of luck. For starters, Indigenous Peoples can do everything possible under existing law to prevent inappropriate uses of their art. Such efforts can be effective.⁴⁴ Indeed, existing legal regimes such as copyright and moral rights are capable of providing robust protection for Indigenous artists.⁴⁵ In addition, Indigenous and non-Indigenous Australians alike can continue to advocate for the aforementioned legislative actions, which could put a stop to many inappropriate uses of Indigenous imagery. ⁴⁶

Finally, and perhaps most importantly, those outside of the Indigenous community can do much good by encouraging others to be conscientious in their approach to Indigenous art. If the debate over cultural appropriation has taught us anything, it is that people are often willing to change their behavior when they learn that it is culturally offensive. In fact, many people are willing to change even when it is not perfectly clear that their conduct is inappropriate. Consider, for example, the Museum of Fine Arts in Boston, which complied with the demands of protestors in 2015 when it ended the practice of allowing patrons to try on kimonos in connection with an exhibition of Monet’s “La Japonaise.”⁴⁷ The museum took this course of action even though the kimono wearing was facilitated by a Japanese entity and supported by the Japanese Consulate and some members of the local Japanese-American community.⁴⁸ This is just one example of how even questionable complaints of cultural insensitivity can spur change.⁴⁹ If people are willing to take corrective action in response to objections that are only arguably legitimate, they should be more willing to address grievances regarding the misuse of deeply sacred things, such as Indigenous art.⁵⁰

V. CONCLUSION: THE TIME HAS COME TO SAY FAIR’S FAIR

The bottom line is that the non-Indigenous community plays an important role in determining how Indigenous art will be treated. This means that non-Indigenous groups have a responsibility to educate themselves and others in order to ensure that Indigenous art is handled with the reverence that befits it. Will some uses of Indigenous art be considered legal notwithstanding their insensitivity? Probably, yes. But, to paraphrase Marge Simpson,⁵¹ just because you can do something, does not mean you should. No, this is not “political correctness run amok”; this is about giving long overdue respect to a historically marginalized group⁵² and coming to the realization that was immortalized by an Australian rock band three decades ago:

The time has come to say fair’s fair;

To pay the rent, to pay our share.

The time has come, a fact’s a fact.

It belongs to them; let’s give it back.⁵³

• ¹See Megan McCluskey, Teen Defends her Chinese Prom Dress after Cultural Appropriation Backlash, TIME (May 2, 2018), https://time.com/5262748/chinese-prom-dress-cultural-appropriation.
• ²Id.
• ³ Alexander Nazaryan, Opinion, A White Student’s Chinese Prom Dress Defines Our Culture; it Doesn’t Maliciously Appropriate Yours, L.A. TIMES (May 8, 2018), https://www.latimes.com/opinion/op-ed/la-oe-nazaryan-qipao-cultural-appropriation-20180508-story.html#; see also Anna Chen, Opinion, An American Woman Wearing a Chinese Dress Is Not Cultural Appropriation, GUARDIAN (May 4, 2018), https://www.theguardian.com/commentisfree/2018/may/04/american-woman-qipao-china-cultural-appropriation-minorities-usa-dress; Sean Rossman, Chinese Are OK with Utah Teen’s Controversial Cheongsam Prom Dress, USA TODAY (May 4, 2018), https://www.usatoday.com/story/news/nation-now/2018/05/04/chinese-ok-utah-teens-controversial-cheongsam-prom-dress/580062002.
• ⁴See Carolyn Twersky, 10 Celebrities Who Have Been Guilty of Cultural Appropriation, SEVENTEEN (July 23, 2018), https://www.seventeen.com/celebrity/g22363821/cultural-appropriation-examples-celebrities; Cathy Young, Opinion, To the New Culture Cops, Everything is Appropriation, WASH. POST (Aug. 21, 2015), https://www.washingtonpost.com/posteverything/wp/2015/08/21/to-the-new-culture-cops-everything-is-appropriation/?utm_term=.8ff181dbf2e6.
• ⁵See Jeff Yang, Opinion, The Shocking Viral Reaction to a Prom Dress, CNN (May 2, 2018), https://www.cnn.com/2018/05/02/opinions/the-shocking-viral-reaction-to-a-prom-dress-yang/index.html. See generally Conor Friedersdorf, What Does ‘Cultural Appropriation’ Actually Mean?, ATLANTIC (Apr. 3, 2017), https://www.theatlantic.com/politics/archive/2017/04/cultural-appropriation/521634.
• ⁶See Jenni Avins & Quartz, The Dos and Don’ts of Cultural Appropriation, ATLANTIC (Oct. 20, 2015), https://www.theatlantic.com/entertainment/archive/2015/10/the-dos-and-donts-of-cultural-appropriation/411292.
• ⁷Style note: As used in this Article, the terms “Indigenous” and “Indigenous Peoples” refer to the native inhabitants of Australia who are also commonly known as Aboriginal and Torres Strait Islander Peoples.
• ⁸See generally Michael Blakeney, Protecting the Spiritual Beliefs of Indigenous Peoples—Australian Case Studies, 22 PAC. RIM L. & POL’Y J. 391 (2013).
• ⁹Molly Torsen, “Anonymous, Untitled, Mixed Media”: Mixing Intellectual Property Law with Other Legal Philosophies to Protect Traditional Cultural Expressions, 54 AM. J. COMP. L. 173, 174-77 (2006).
• ¹⁰Marking the Infinite: Contemporary Women Artists from Aboriginal Australia, About the Exhibition, THE PHILLIPS COLLECTION, https://www.phillipscollection.org/events/2018-06-02-exhibition-marking-the-infinite (last visited July 27, 2018).
• ¹¹Blakeney, supra note 8, at 393-98.
• ¹²Id. at 394-98.
• ¹³Id. at 394-95.
• ¹⁴Id. at 395.
• ¹⁵See Jake Phillips, Comment, Australia’s Heritage Protection Act: An Alternative to Copyright in the Struggle to Protect Communal Interests in Authored Works of Folklore, 18 PAC. RIM L. & POL’Y J. 547, 547 (“In 1988, retail sales of Australian Aboriginal art totaled $18.5 million dollars (AUD). By 1997, estimates valued the indigenous arts and crafts industry at over $200 million.”).
• ¹⁶Id. at 547-48; see also Angelina Hurley, Indigenous Cultural Appropriation: What Not to Do, CONVERSATION (Nov. 28, 2017), https://theconversation.com/indigenous-cultural-appropriation-what-not-to-do-86679 (“Today, up to 85% of art sold through tourism markets as First Nations souvenirs is fake and imported.”).
• ¹⁷Blakeney, supra note 8, at 398, 404-06.
• ¹⁸See Paige Taylor, ‘Wandering Wandjinas’ Mystery, PERTH NOW (Jan. 4, 2007), https://www.perthnow.com.au/news/wa/wandering-wandjinas-mystery-ng-50f81fec432f89a9e25dd1b79b2f7728 (chronicling the response of an Indigenous artist to the use of a sacred image in Perth street art).
• ¹⁹See Colin Packham, Australian Researchers Lay Bare Bloody History of Colonial Massacres, REUTERS (July 27, 2018), https://www.reuters.com/article/us-australia-indigenous/australian-researchers-lay-bare-bloody-history-of-colonial-massacres-idUSKBN1KH0BZ; Calla Wahlquist, Map of Massacres of Indigenous People Reveals Untold History of Australia, Painted in Blood, GUARDIAN (July 5, 2017), https://www.theguardian.com/australia-news/2017/jul/05/map-of-massacres-of-indigenous-people-reveal-untold-history-of-australia-painted-in-blood.
• ²⁰See Torsen, supra note 9, at 173 (“The history of the world is inarguably longer than the history of modern legal systems. And yet contemporary perceptions of ownership are used to govern expressions of ideas that were created long before these legal systems were made . . . .”).
• ²¹See, e.g., id. at 182.
• ²²Id.
• ²³Blakeney, supra note 8, at 403-06.
• ²⁴See supra text accompanying notes 12-14.
• ²⁵Blakeney, supra note 8, at 398.
• ²⁶Id.; see also 17 U.S.C. § 201(a) (2012) (“Copyright in a work . . . vests initially in the author . . . of the work.” (emphasis added)).
• ²⁷(1991) 21 IPR ¶¶ 1-25 (Austl.).
• ²⁸See id. ¶¶ 6, 11, 13, 15-20.
• ²⁹Id. ¶¶ 19-21, 25.
• ³⁰See id. ¶¶ 4-5, 21; Packham, supra note 19 (“Some indigenous people refer to [the anniversary of the arrival of Europeans] as ‘Invasion Day.'”); Wahlquist, supra note 19.
• ³¹See Yumbulul, 21 IPR ¶¶ 6, 21.
• ³²See id. ¶ 21 (“[I]t may also be that Australia’s copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin. But to say this, is not to say that there has been established in this case, any cause of action.”); id. ¶ 24 (“[T]he question of statutory recognition of Aboriginal communal interests in the reproduction of sacred objects is a matter for consideration by law reformers and legislators.”).
• ³³See Blakeney, supra note 8, at 398-399 (“Of course, even if authorship could be resolved, the antiquity of [the Wandjina] images also means that they are outside the length of copyright protection.”).
• ³⁴U.S. CONST. art. I, § 8, cl. 8. Of course, trademark law theoretically provides perpetual protection for some intellectual property. See 15 U.S.C. § 1059(a) (2012). Nevertheless, this body of law is an imperfect fit for Indigenous art because it has “use in trade” as a prerequisite to protection. Blue Bell, Inc. v. Farah Mfg. Co., 508 F.2d 1260, 1264-65 (5th Cir. 1975); see supra text accompanying notes 22-23 (explaining that commercially-rooted laws are unlikely to provide the protection that Indigenous Peoples desire).
• ³⁵See Blakeney, supra note 8, at 396 (“A recent review of rock art dating in the Kimberley region provides a range of dates commencing from between 33,000 and 42,000 years ago.”); see also Hannah Devlin, Indigenous Australians Most Ancient Civilization on Earth, DNA Study Confirms, GUARDIAN (Sep. 21, 2016), https://www.theguardian.com/australia-news/2016/sep/21/indigenous-australians-most-ancient-civilisation-on-earth-dna-study-confirms.
• ³⁶Torsen, supra note 9, at 176, 181; see also Blakeney, supra note 8, at 427 (“Federal legislation could achieve the protection of the spiritual beliefs of Aboriginal and Torres Strait Islander Peoples. This would be legislation in which their spiritual beliefs would be protected as a sui generis right, rather than as a subsidiary category of some other body of law.”).
• ³⁷See 15 U.S.C. § 1059(a) (providing a theoretically infinite term of trademark protection); 17 U.S.C. § 201(b) (allowing for corporate (i.e., communal) ownership of copyright); Berne Convention for the Protection of Literary and Artistic Works art. 6bis, Sept. 9, 1886, as revised Sept. 28, 1979, S. TREATY DOC. NO. 99-27 (1986) (granting artists the right to prevent certain uses of their work, “[i]ndependently of [their] economic rights”); Torsen, supra note 9, at 176-96 (drawing from these and other legal regimes to propose the enactment of protections for the “traditional cultural expressions” of Indigenous Peoples).
• ³⁸See Inquiry into Fake Aboriginal Art Underway in the NT, NITV (May 1, 2018), https://www.sbs.com.au/nitv/nitv-news/article/2018/05/01/inquiry-fake-aboriginal-art-underway-nt; Selling Fake Indigenous Art Should be Illegal, MPs Told, GUARDIAN (Apr. 9, 2018), https://www.theguardian.com/artanddesign/2018/apr/09/selling-fake-indigenous-art-should-be-illegal-mps-told.
• ³⁹See 18 U.S.C. § 1159 (2012); 25 U.S.C. § 305e; Inquiry into Fake Aboriginal Art Underway in the NT, supra note 38 (“Among the calls for change is a proposal . . . to allow for a blanket ban on the import or sale of fake or inauthentic product, a label for products which would identify them as authentic or inauthentic, and making the Indigenous Art Code . . . mandatory for anyone who deals in Indigenous art . . . .”).
• ⁴⁰See INDIGENOUS ART CODE § 2.3, https://indigenousartcode.org/wp-content/uploads/2017/03/Indigenous-Art-Code.pdf (last visited Aug. 17, 2018) (“Dealer Members must respect the rights of Artists . . . including by . . . not marketing, promoting, displaying or selling Artwork or material . . . which a reasonable person would know contains content that the relevant indigenous community and/or traditional owners consider to be secret/sacred and/or restricted.”); Inquiry into Fake Aboriginal Art Underway in the NT, supra note 38; Selling Fake Indigenous Art Should be Illegal, MPs Told, supra note 38 (“The [Aboriginal Art Centre Hub of WA] estimated that 85% to 90% of Aboriginal art sold in souvenir shops was fake and imported from overseas.”); supra text accompanying notes 27-32 (summarizing Yumbulul v Reserve Bank of Australia).
• ⁴¹See Torsen, supra note 9, at 182 (stating that there is “tension between protecting [traditional cultural expressions] and prohibiting regulation of cultural expression”). Even some commercial uses of Indigenous art may be exempted. See Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 260-63 (4th Cir. 2007) (holding that appellee’s trademark was unlikely to cause confusion, in spite of its close similarity to appellant’s trademark, because it was a “successful parody”).
• ⁴²See Golan v. Holder, 565 U.S. 302, 327-330 (2012); see also Eldred v. Ashcroft, 537 U.S. 186, 218-22 (2003).
• ⁴³See, e.g., Golan, 565 U.S. at 328-29.
• ⁴⁴See, e.g., Blakeney, supra note 8, at 407-09 (chronicling a favorable ruling on a copyright infringement claim by an Indigenous artist whose work was used on fabric without authorization).
• ⁴⁵See Copyright Act 1968 (Cth) pt III div 3 s 33 (Austl.) (providing copyright protection that “subsist[s] until the end of 70 years after the end of the calendar year in which the author died”); id. pt IX div 5 s 195AM (granting visual artists moral rights protection for each of their works “until copyright ceases to subsist in the work”).
• ⁴⁶See Jessica Hobbs, The $200m Industry of Cheap Fakes Ripping Off Indigenous Artists, BRISBANE TIMES (Mar. 24, 2018), https://www.brisbanetimes.com.au/entertainment/art-and-design/the-200m-industry-of-cheap-fakes-ripping-off-indigenous-artists-20180324-p4z63m.html; supra Inquiry into Fake Aboriginal Art Underway in the NT, supra note 38; Selling Fake Indigenous Art Should be Illegal, MPs Told, supra note 38; supra text accompanying notes 38-40.
• ⁴⁷See Malcom Gay, MFA Backs Down over Kimono Event in Response to Protests, BOS. GLOBE (July 7, 2015), https://www.bostonglobe.com/lifestyle/style/2015/07/07/mfa-backs-down-over-kimono-event-response-protests/lv9NHcnpW0lsRE77d9hvkI/story.html.
• ⁴⁸See Stephanie McFeeters, Counter-Protesters Join Kimono Fray at MFA, BOS. GLOBE (July 19, 2015), https://www.bostonglobe.com/arts/2015/07/18/counter-protesters-join-kimono-fray-mfa/ZgVWiT3yIZSlQgxCghAOFM/story.html; Gay, supra note 47.
• ⁴⁹Indeed, even fairly dubious complaints of cultural appropriation can motivate change. See Katie Rogers, Oberlin Students Take Culture War to the Dining Hall, N.Y. TIMES (Dec. 21, 2015) https://www.nytimes.com/2015/12/22/us/oberlin-takes-culture-war-to-the-dining-hall.html (explaining actions taken by Oberlin College in response to students’ complaints that the school cafeteria’s poor-tasting takes on Chinese, Japanese, and Vietnamese cuisine amounted to cultural appropriation).
• ⁵⁰ Cf. Rachel E. Gross, Oberlin Students Think Americanized Asian Food Is Cultural Appropriation. They’re So Wrong., SLATE: BROWBEAT (Dec. 23, 2015), https://www.slate.com/blogs/browbeat/2015/12/23/oberlin_students_think_americanized_asian_food_is_cultural_appropriation.html (disputing the contention that Oberlin’s poor attempts at Chinese, Japanese, and Vietnamese food were culturally insensitive, but agreeing that the college’s use of beef in an Indian-inspired dish was inappropriate); Conor Friedersdorf, A Food Fight at Oberlin College, ATLANTIC (Dec. 21, 2015), https://www.theatlantic.com/politics/archive/2015/12/the-food-fight-at-oberlin-college/421401/ (same).
• ⁵¹See Edward Dodd, Homer Deep Fries His Shirt, YOUTUBE, https://www.youtube.com/watch?v=Cr–_i0JZbs.
• ⁵²See supra notes 18-19 and accompanying text.
• ⁵³MIDNIGHT OIL, Beds Are Burning, on DIESEL AND DUST (Columbia Records/CBS Records, Inc. 1988); see also Andrew Mueller, Australian Anthems: Midnight Oil—Beds Are Burning, GUARDIAN (Mar. 10, 2014), https://www.theguardian.com/music/australia-culture-blog/2014/mar/11/midnight-oil-beds-are-burning-australian-anthems.