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In short, the court noted, when “the copying is verbatim, for an identical function and purpose, and there are no changes to the expressive content or message, a mere change in format (e.g., from desktop and laptop computers to smartphones and tablets) is insufficient as a matter of law to qualify as a transformative use.”35

Briefly addressing the conflicting views of the parties on whether Google acted in bad faith, the court noted that Oracle claimed that Google intentionally copied and knew it needed a license, while Google argued that it complied with industry custom and believed that it could copy the declaring code and SSO as long as it wrote its own implementing code. Concluding its analysis of the first fair use factor, the court held “that, even assuming the jury was unpersuaded that Google acted in bad faith, the highly commercial and non-transformative nature of the use strongly support the conclusion that the first factor weighs against a finding of fairuse.”36

[*1431] The Supreme Court's majority opinion in Google LLC v. Oracle Inc. seems to indicate the Court's movement toward such an approach. There the court attempted to analyze the nature of a presumably copyrightable "user interface" created for computer programmers. 287 Instead of merely categorizing the computer code in question as a "literary work," or even a "computer program" - two terms defined by the Copyright Act 288 - and granting greater protection to it against unauthorized uses, the court looked instead to the ontological nature of the work, examining what the work is from within the work's creative environment. First, the court examined the inputs and outputs that created the interface, including the different kinds of computer code that made up the interface and the kinds of programming (creative, problem-solving vs. more functional or organizational) necessary to produce each component. 289 Second, the Court spent considerable space describing how the user interface functions within the creative environment for computer programming. It found that the code at issue effectively acted as a system of "file cabinets, drawers, and files" for programmers, organized with labels that "would prove intuitively easy to remember." 290 Finally, the court examined the value of the work to the creative environment for computer programming. It noted that the value of the code in question derived not necessarily from the creative investments of the authors of the user interface, but from users of the interface who invested their time learning how to use the code's various commands and who continued to use it to create new programs. 291

The U.S. Supreme Court on Thursday held that the federal government has been under-funding Native American tribes that administer their own healthcare programs for 30 years and must pay potentially hundreds of millions more going forward.

In its 5-4 ruling, the court found that federal law requires the U.S. Department of Health and Human Services to pay the overhead costs that tribes incur when spending money from Medicare, Medicaid and private insurers. The ruling is a victory for the San Carlos Apache Tribe in Arizona and the Northern Arapaho Tribe in Wyoming, which had each sued over the funding.

However, by expanding the concepts of what constitutes a valid copyright, Star Athletica now provides the framework to hold KTZ liable for infringement upon a showing that the motifs could be separated from the parka's utilitarian functions and protected on their own. 105 Despite the parka itself representing a copyrightable object, the Copyright Act remains restrictive when considered in light of customary law and traditional notions of communal authorship. Thus, it presents hurdles to the protection of analogous Indigenous designs. Star Athletica exemplifies the benefits of utilizing broad legislative interpretation as a tool to provide for greater protections and lays the groundwork for preventing cultural appropriation by incorporating customary laws within the existing legislative framework by recognizing notions of communal authorship and strengthening moral rights.

The Supreme Court ruled unanimously last Monday in Fourth Estate v. Wall-Street.com, a copyright case that hinged on whether the “registration” of a work—which, by statute, must precede most kinds of infringement lawsuits—happens when the author sends in their application, or whether it happens when the Copyright Office makes a determination and sends back a certificate. There was a circuit split on the issue, in which some courts had gone with the “application approach,” and others had gone with the “registration approach,” and legal experts were divided on the question.

As of last Monday it is resolved. The Supreme Court went with the “registration approach” and said that unless you’re subject to one of the handful of statutory carve-outs you must wait until the Copyright Office does its thing before you can sue.

Significantly expanding the scope of monetary recovery for copyright infringement, the U.S. Supreme Court held, in a 6-3 opinion issued on May 9, 2024, that the Copyright Act’s three-year statute of limitations is inapplicable to damages and thus there is no temporal limitation for timely asserted claims. In issuing this decision, however, the Court explicitly sidestepped the threshold – and arguably pivotal – question of when a copyright infringement claim “accrues” under the Copyright Act, leaving for another day the resolution of what makes a claim “timely.”

The case, Warner Chappell Music, Inc. v. Nealy, involved a copyright infringement claim asserted by Sherman Nealy, who recorded and released an album and several singles in the 1980s with Tony Butler through their short-lived music venture, Music Specialist, Inc. The Nealy/Butler collaboration eventually dissolved, and Nealy served prison terms for drug-related offenses from 1989 to 2008 and from 2012 to 2015. Unbeknownst to Nealy, Butler licensed works from the Music Specialist catalogue to Warner Chappell while Nealy was in prison, one of which was used in Flo Rida’s hit song In the Ayer, which sold millions of copies and reached No. 9 on the Billboard chart.

Given the ALRC's proviso, and Australia's recognition of the copyrightability of some Indigenous cultural expressions, Stoianoff and Wright interpret the second fair use factor as potentially requiring appropriators to consult with Indigenous communities before a use of their cultures can be considered "fair." 272 Consultation would allow potential fair users (and courts, ex post) to determine what the work is from an Indigenous point of view, and then take the necessary precautions to ensure Indigenous interests are protected. 273 In effect, this interpretation of the second factor would mean fair users likely would have to comply with existing protocols adopted by Indigenous communities prior to making publicly beneficial use of their cultural materials without express permission.

While scholarship dedicated to the second fair use factor is sparse, commentators recognize the factor's continued importance in assessing its potential impact on creative networks and its potential to account for Indigenous protocols governing the creation and circulation of culture.

Even if determinations of fair use are left to federal judges, courts can take steps to mitigate potential bias. In applying the second fair use factor analysis, courts should focus on evidence of a work's actual ontology and harm to the work's creative environment rather than basing their decisions on the fact finder's subjective inferences about the work's predisposition to being appropriated. 302 To do this, stakeholders in a given work could be called on to testify as to the mode of creation and value of a work within its creative environment and the effect unauthorized appropriation has or would have on future creative output. Where the original creators are no longer participating in that creative environment, those who carry such creativity forward can be called on to testify. Evaluating some creative contexts will be more complex, including those where a variety of actors are implicated in a work's creation (such as an environment like powwow, where culture is shared across communities) or where a creative environment is ontologically challenging for the fact finder (such as in the realm of Indigenous ceremonial creativity). In these situations, a tribal leader or other community member knowledgeable about the cultural context or a social scientist with both knowledge and binding relationships to the community might be among those to provide expert testimony regarding the effects of unauthorized appropriation on the particular creative environment. Ultimately, courts should give deference to the views of Indigenous communities when assessing and weighing the "nature" of their copyrightable works against the other fair use factors.

Second, establishing an “opt-out” framework in which Tribal law and policy determines the reach of the Copyright Act on Tribal lands sets a bright-line standard for when copyright law should regulate creativity occurring on Tribal lands. The currently inconsistent circuit court tests outlined in Part I, which attempt to divine a given federal law’s impacts on Tribal sovereignty based on a foreign judge’s understanding of it, are arbitrary at best, leaving Tribal authors, artists and other creators guessing about what intellectual property rights they might hold. Indeed, these tests re-entrench settler-colonial power over Indigenous peoples by usurping their prerogatives on what is or is not an intrusion on their sovereignty.

The approach proposed here presumes that federal copyright law will always interfere with Tribal sovereignty and self-determination whenever it conflicts with an established Tribal law or policy. Federal courts would simply need to inquire whether Tribal law or policy already regulates a particular creative subject matter. If the Tribe has spoken as to the protection of a particular kind of creativity legislatively, via common-law, or through established Tribal protocols and norms, that creativity will be exempt from the application of the Copyright Act on Tribal lands. Thus, by tethering Tribes’ own positive enactments (or lack thereof) to the status of federal copyright, I argue that Tribal self-determination in the area of intellectual property will be encouraged.

As a matter of federal policy and established international norms, Indigenous sovereigns, not colonizing governments, should exercise ultimate control over the ownership and circulation of creative expressions within their territories. While this principle is seemingly straightforward, implementing it within the field of copyright law poses certain challenges, particularly given the federal government’s dominance in the field of copyright law today and the uncertainty in the law surrounding the TribalFederal relationship. At one extreme, unilaterally imposing the Copyright Act on Tribal lands would, as articulated by the UNDRIP, impermissibly invade Tribes’ inherent sovereignty. But the opposite extreme — completely eliminating federal protection for all works created on Tribal lands — also makes little sense as it would potentially deprive Tribal members (who are U.S. citizens) of a kind of valuable property right otherwise available to other Americans. The status of copyright on Tribal lands may also have implications for those who aren’t members of the Tribe residing off of tribal lands: if the Copyright Act were not enforceable on Tribal lands, copyrightable works—made by Tribal members and non-members alike—could be exploited there with impunity, unless Tribes protected these works under principles of comity or their own intellectual property frameworks.

To remedy this dilemma, the United States ideally should enter into bi-lateral agreements with each Tribe establishing mutually agreed upon protections for creative expressions. This is how the United States has historically engaged in negotiations with Tribes where both property rights and sovereignty are at stake.242 Such agreements would allow Tribes and the United States to determine how the Copyright Act would apply on Tribal lands so as to avoid intrusion on Tribal sovereignty while potentially providing opportunities for reciprocal federal recognition and enforcement of Indigenous intellectual property laws off of Tribal lands. Such agreements already pervade Indigenous-settler relations in the United States, beginning with treaties,243 and persisting now through governmentto-government agreements, such as Indian Self-Determination and Education Assistance (ISDEAA) contracts. These contracts allow Tribes to regulate and operate local schools, hospitals, and other institutions previously regulated by the federal government, with the purpose of increasing Tribal self-determination in areas critical to Tribal sovereignty.244 The end result would be a robust intellectual property framework that protects both Indigenous and settler creative interests, while upholding the national intellectual property policies of both the United States and sovereign Tribal nations.

Western copyright law assigns its bundle of rights to individual people or individual legal entities. Joint authorship for purposes of copyright has a narrow interpretation and would probably not allow for the kind of communal ownership that a clan or tribe would find useful. In the United States, for example, the benefits of authorship can be divvied amongst joint authors but, for an entire culture or clan, that kind of rights management would be extremely difficult if not impossible, due to the fact that entire tribes and clans consider themselves, as a whole, stewards and caretakers of their culture. "Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work." 28 Communal rights are gaining some attention but Western copyright regimes remain focused on single, identifiable authors.

Three mechanisms in copyright law could be utilized to attempt to overcome this problem: (1) joint authorship; (2) the transfer of rights; and (3) the work made-for-hire provision. These mechanisms may, however, in the end, be unsatisfactory. The most logical possibility is the provision for joint authorship. 127 This provision is the only nod to collective ownership in the acts. It allows the multiple authors of a work to be co-owners of the copyright in the work. Unfortunately, this provision is very narrow. In order to be deemed a joint author, two requirements must be satisfied. First, the joint authors must in fact collaborate in the work's preparation, and second, they must intend, at the time the work is prepared, that their contributions be merged into "inseparable or interdependent parts of a unitary whole. 128 Thus, under the first requirement, joint authorship vests the rights only in the persons who actually make the work (or their designees). That is, only those clan members who are involved in the creation of the work can be joint authors. The rest of the clan or community could not be considered co-owners unless they actually contributed to the creation of the work. 129 Furthermore, to be a joint author each person's contribution must be copyrightable. Thus, a clan elder who dictates the composition to an artist who executes it will not be a joint author with the artist.

Finally, indigenous communities are passing their own laws that put pressure on and provide legitimacy for national courts to adopt similar stances. 103 For example, the Hopi claim an interest in "all published or unpublished field data relating to the Hopi, including notes, drawings, and photographs, particularly those dealing with religious matters." 104 Similarly, the Apache have demanded "exclusive decision-making power and control over Apache "cultural property' … defined as "all images, text, ceremonies, music, songs, stories, symbols, beliefs, customs, ideas and other physical and spiritual objects and concepts' relating to the Apache, including any representation of Apache culture offered by Apache or non-Apache people." 105 Indigenous laws are the frontlines of intellectual property in terms of innovation and departure from existing legal frameworks, but they draw on existing mechanisms such as copyright to demand benefits, sharing arrangements such as joint-copyright over research which would convert them into legal co-authors of the materials produced, or trademark to protect the creation of new artifacts akin to the IACA. 106

The relationship between federal intellectual property laws and Native American tribes and artists is a unique and sacred one the United States owes a duty to protect tribes through treaty obligation and as "domestic dependent nations"152 and must take steps to amend federal trademark, copyright, and patent law to better protect the interests of tribes and boost economic development. Additionally, amending the IACA to provide broader protection for Indigenous artists who fall outside the Act's definition of "Indian" could further strengthen tribal fiscal growth. Laying a strong foundation for growth in tribal arts can pave the way for both economic and cultural development across the many tribes throughout the United States and should be a priority moving forward to support tribes reclaiming their sovereignty.

Ukraine’s success can be credited in part to the resolve of the Ukrainian people, the weakness of the Russian military, and the strength of Western support. But it also owes to the defining new force of international politics: innovation power. Innovation power is the ability to invent, adopt, and adapt new technologies. It contributes to both hard and soft power. High-tech weapons systems increase military might, new platforms and the standards that govern them provide economic leverage, and cutting-edge research and technologies enhance global appeal. There is a long tradition of states harnessing innovation to project power abroad, but what has changed is the self-perpetuating nature of scientific advances. Developments in artificial intelligence in particular not only unlock new areas of scientific discovery; they also speed up that very process. Artificial intelligence supercharges the ability of scientists and engineers to discover ever more powerful technologies, fostering advances in artificial intelligence itself as well as in other fields—and reshaping the world in the process.

We agree that more powerful countries are likely to have more influence on the long-term future than less powerful ones, and that a country’s economic development is a strong indicator of its technological and geopolitical power. However, this does not mean that developed countries matter morally more than developing ones. Rather, it underscores the importance of global development—the process of low- and middle-income countries becoming high-income ones. Similarly, although workers in high-income countries generally have higher labor productivity, a large component of this is the place premium. That is, a worker’s productivity increases—sometimes by a factor of 15 or more—when they move from a poor country to a rich country, simply because they are being paid more for the same work. Once again, this speaks to the importance of global development and helping people escape poverty. This essay describes why it’s important for the long term future for everyone to be in a relatively high-income country, and what it might look like for global development to be a longtermist issue. Global development benefits the long-term future by increasing diversity in global institutions and reducing civilization’s vulnerability to global catastrophic risks like armed conflict and pandemics. What is global development? Effective altruists regularly talk about “global health and development” as a category of ways to do good. However, it’s clear now that development drives health much more than health drives development. Global development is the process by which low- and middle-income countries turn into high-income countries. The best modern example of this are the Asian countries of South Korea, Taiwan, Japan, and China. These have been compared with other Asian countries that were thought to be “tiger cubs” in the ‘90s such as the Philippines and Thailand in the book How Asia Works, by Joe Studwell. In this book, Joe lays out a recipe for development. Here’s the summary from Bill Gates: Create conditions for small farmers to thrive. Use the proceeds from agricultural surpluses to build a manufacturing base that is tooled from the start to produce exports. Nurture both these sectors (small farming and export-oriented manufacturing) with financial institutions closely controlled by the government. Importantly, in South Korea, Taiwan, Japan, and China, these steps were taken by relatively uncorrupted leaders who made it their life’s work to develop their home country. Other countries unable to develop had leadership who were swayed by the neoliberal free-market thinking pervasive at the World Bank and IMF at the time, or who were otherwise too corrupt or incompetent to stay true in delivering their development strategy. Global development is important for the long-term future In an EA Forum post, Beckstead defines three types of benefits that an intervention can have: proximate benefits, benefits from speeding up development, and trajectory changes. Global development would have immediate benefits for people alive today: economic development in low-income countries means that fewer people would experience poverty, illness, hunger, and violence. Speeding up development is speeding up the process by which countries become high-income, so it would ensure that people realize these benefits sooner. But most of the benefits of global development are through trajectory changes that affect the long-term future. We argue that global development creates significant long-term benefits through this route. Global development can also lead to trajectory changes in the global political environment that would not happen if the development timeline were slowed down, since such changes can be locked in over time. Global development increases diversity in global governance One of the main ways global development benefits the far future is through its impact on diversity and inclusion in world institutions. As countries get richer, their people get better educated and thus better placed to participate in institutions with great decision-making power over the world, such as multinational corporations, governments, and international organizations. Increasing the diversity of decision makers in global institutions improves the quality of world governance, which enables humanity to better navigate existential risks and other global challenges. Diversity in global institutions improves their efficacy in two ways. First, socially diverse groups outperform homogeneous groups at decision-making because they deliberate more carefully and pay more attention to facts. They also innovate more because diverse group members bring unique perspectives. Second, it improves value alignment between these institutions and humanity as a whole. It has been proposed that humanity should engage in a “long reflection” to decide what is ultimately of value before making potentially irreversible decisions regarding its future. For such decisions to reflect the values and needs of all of humanity, as many people as possible should be able to participate meaningfully in the global institutions making these decisions. Currently, about 689 million of the 8 billion people worldwide live in extreme poverty, and they cannot participate meaningfully in world governance as long as their basic needs are not met. 2.9 billion people lack Internet access, which is an important communication channel through which people make their voices heard on global issues and influence global institutions. Internet adoption is uneven across social groups: for example, women, people in rural areas, and people over age 25 are less likely to have Internet access. These disparities are especially pronounced in the 46 UN-designated Least Developed Countries (LDCs). Another barrier to diversity in global governance is the structure of institutions such as the United Nations, which is not designed to represent the general will of humanity. UN institutions represent the will of states—especially the five permanent members of the UN Security Council: the United States, the United Kingdom, France, Russia, and China. Although a diverse group of countries have voices in the UN, their citizens do not, especially in the case of authoritarian states. Global development reduces existential risks Another important way in which global development improves the long-term future is by reducing existential risks, particularly risks from pandemics and political instability. 80,000 Hours estimates that the risk of a biological existential catastrophe in the next 100 years is about 1 in 1000. Poverty makes communities more susceptible to spreading infectious diseases. For example, a study of Monrovia, Liberia, in 2014 found that people living in slums who caught the Ebola virus spread it to an average of 3.5 times more people than people living in rich neighborhoods. This is because these neighborhoods are overcrowded, contaminated, and lacking in sanitation and health care infrastructure. Also, malnutrition weakens the immune systems of poor people, thereby making them more vulnerable to disease. Raising national income improves population health and enables countries to invest more in public health infrastructure, which makes populations more resilient to potentially catastrophic pandemics. Global poverty also causes existential risk through its negative effects on international security. Many developing countries, particularly weak states, are caught in a vicious cycle of poverty, corruption, and political instability: “Inept, corrupt, or weak governance fosters poverty; widespread poverty makes effective, equitable governance more difficult to achieve; and when weak governments fail to improve their people’s lives, their legitimacy suffers.” Weak states often engender terrorism and crime because they are unable to maintain law and order in their territories. Global development in practice There are two general ways to increase the living standards of people around the world. The first is reducing barriers to immigration to high-income countries so that more people from low-income countries can move to them, take advantage of the place premium, and send money back to their countries of origin. The second is to pursue policies to increase the productivity of low-income countries so that their people are better off. Reducing barriers to migration Opening up borders in high-income countries does not decrease opportunities for those in high-income countries (although it may stress city infrastructure if not planned well). Matthew Yglesias writes about a six-month period in 1980 where 125,000 Cubans left the Cuban port of Mariel and arrived in Florida (a 7% increase in the labor workforce). These immigrants weren't particularly skilled, but no decreases in natives’ wages occurred. Yglesias explains that immigrants increase the quality and variety of goods and services available, instead of competing for native workers’ jobs. Furthermore, when the supply of hired help is increased, some college-educated women who might have otherwise been stay-at-home moms are more likely to work. Immigrants also send money back home: for example, according to the Central Bank of the Philippines, between 1975 and 1994 Filipino overseas contract workers sent remittances totaling $18.196 billion (for comparison, the Philippines is currently $46B in debt to the World Bank, IMF, etc.).10 Closing the digital divide is also one way to gain some of the benefits of open borders, by opening up opportunities for jobs in high-income countries that can be done remotely to people in lower income countries.11 Catch-up growth Economic growth improves quality of life better than public health interventions. However, it is difficult for a country to increase its income unless the country's leadership is both dedicated to this cause, and following the correct strategy towards development. As pointed out by a report from Rethink Priorities last year, land redistribution (the first step of developing a country according to How Asia Works) is unlikely to happen without some kind of major turmoil (such as a country gaining independence) as landowners have political power, even if landowners are vastly outnumbered. Here are some examples of organizations pursuing catch-up growth in low- and middle-income countries: The World Bank and IMF provide loans and advice to low and middle income countries for development. Depending on the income of the country, the loan may not have to be repaid. The Gates Foundation provides entrepreneurial support. Newer organizations working on the problem include Growth Teams and the Charter Cities Institute. Entrepreneurs such as Sierra Juice and Jaza Energy contribute by providing jobs and increasing production value of exports. Interestingly, investment in non-hydro renewable energy has actually tipped to be greater in low- and middle-income countries than in high-income countries, now that solar has become cheaper. The Center for Global Development advocates for rich-world policies that benefit low- and middle-income countries. Other organizations engage in activities such as microloans, which are shown to benefit the recipient as long as the microloan is not used to fund people joining multi-level marketing schemes. Organizations like Grameen America should stop allowing the loans to be used for this purpose. Overall there are many more initiatives meant to alleviate poverty than to encourage the economic development and democratic power necessary to end it. Given that government-led development is hard without a people in power dedicated to and capable of executing development strategy, the mechanism by which development happens is by successful businesses giving people stable jobs, especially jobs that upskill workers in their career. Conclusion While a naive application of longtermism might lead one to think that low-income countries are less important than high-income countries, this view is facile because it ignores the fact that countries can and do develop over time. Rather, longtermism speaks to the importance of developing low-income countries into high-income ones. Global development improves the long-term future of humanity by improving global governance and decreasing civilization’s vulnerability to catastrophic risks. This makes global development a pressing longtermist issue.

For these reasons, sui generis rights have been proposed for folklore. According to these proposals, protection should be perpetual and retroactive, and derivative works should be strictly controlled. But there may be consequences for the implementation of these rights. By overprotecting folklore, the public domain diminishes, which means that there are fewer works to use to build on. Therefore, indigenous artists who want to develop their artistic traditions by reinterpreting traditional motifs in non-traditional ways, and want to compete in the arts and crafts markets may be inhibited by these regimes. The consequence is that these laws may "freeze" the culture in a historic moment, allowing us to think of indigenous peoples as romantic relics from a lost time, and to deny them a contemporary voice.

‌The intellectual property legal regime is a powerful one, its component parts comprising a complex body of law, an existing mind share, and a cache-all of which have developed over the years, and from which all peoples should benefit. Thus, if the workings of the intellectual property machine involve culturally-specific components, that machine should not be discarded when it is found ineffectual for all cultures; rather, the machine should be reconstructed such that it works for all cultures. The inclusion of indigenous peoples' cultural knowledge, inventions, expressions, and works within an intellectual property regime requires some rewiring of the parts, but does not diminish the potential legal value of the machine itself. This Article discusses the means by which indigenous interests can, and should, be incorporated into intellectual property law. 9 Copyright laws, in their current formulation, are inadequate to protect the fruits of human creativity of indigenous peoples. Thus, I will argue that copyright laws can, and must, be expanded in three ways so as to protect and maintain the vitality of the artistic and literary works of indigenous cultures: incorporating collective and communal authorship; expanding originality requirements to reflect collective and communal authorship; and applying limits on the duration of protection in a broader community context. I also propose that a variety of intellectual property mechanisms be drawn upon to provide special protection for "sacred" cultural works.In Part One, I use the debates over terminology to illuminate briefly some of the cultural issues at play with respect to the protection of the literary, artistic, and scientific works of indigenous peoples. In Part Two, I discuss the parameters of "intellectual property" and introduce the concept and operation of copyrights. In Part Three, I argue that the legal construction of authorship within the copyright context must be expanded to accommodate indigenous interests. In this Section, I examine in detail notions of authorship as they are embedded in intellectual property law and show that they run contrary to fundamental principles of authorship held by indigenous peoples. I argue that authorship must be reconstructed to accommodate cultural difference. I discuss developments toward that end in Australian case law and suggest additional intellectual property concepts that can be drawn upon to further that objective. In Part Four, I address the need to recast originality requirements to reflect an expanded notion of authorship, and in Part Five, I explore the various alternatives to basing the duration of rights on the "life of the author" within this expanded framework, noting both practical and policy conflicts over the duration of rights. Finally, in Part Six, I advocate special protection for sacred cultural works, and explore some of the already established legal mechanisms, in addition to copyright, through which this protection can be sought.

While sui generis protections address specific legal shortcomings, they merely accommodate customary law. Modifying the Copyright Act to incorporate, rather than separately address, these legal concepts fully recognize the value of TCEs as copyrightable material. Fusing concepts such as cultural patrimony into the fundamental tenants of copyright law would allow for an expanded understanding of authorship, as TCEs often represent this same level of cultural significance such that the community the TCE represents effectively “authored” it. This new category of authorship must operate in a limited scope, only extending to a work with such cultural significance that it exists indivisible from its holder. Following the 10th Circuit’s lead in Corrow and taking note from Australian jurisprudence, judge-made law can begin the process of recognizing communal authorship in the United States.

The current inability to identify an author because of the differences in customary notions of authorship leaves incredibly sacred Indigenous designs and garments entirely unprotected. By expanding the definition of authorship, the Copyright Act can accommodate TCEs within the existing framework, and possessing a valid copyright allows for full enjoyment of the benefits granted by the Act, such as an economic monopoly and standing to bring suit for infringement. Indigenous communities will also have the autonomy to make decisions about licensing and exploiting their designs, options foreclosed to works existing in the public domain. However, merely recognizing Indigenous designs as copyrightable only partially protects them from exploitation by mainstream fashion. To offer a wellrounded bundle of protections, the United States must explicitly recognize and enforce moral rights.

The first section of this article has shown that the treatment of Indigenous oral traditions relies on multiple legal areas, but none of them are sufficient on their own. Cultural property law provides the basis for safeguarding and inventory making. Indigenous rights provide more control to Indigenous people, and this control then extends to their creations, such as oral traditions. Intellectual property rights, while useful for controlling the subject matter, does not have a single type of right that perfectly fits oral traditions. While not opposing other types of rights and a future sui generis system, the second part of this article has analyzed the copyright implications for different works in different stages, meaning that copyright will affect control at every stage. This does not have to automatically mean that copyright is always beneficial for the Indigenous community. In fact, especially in the earlier stages, copyright can benefit outsiders more. However, recognizing and avoiding copyright pitfalls in earlier stages and then having the option to rely on copyright at later stages is still relevant for Indigenous communities interested in this type of control. Therefore, this article has reached the conclusion that the impact of an existing, relatively harmonized, and strong system like copyright needs to be recognized and considered in parallel to other attempts for finding what is best for oral traditions.