Intellectual property rights are designed to help the individual authors and promote economic growth – not actually help the collective of knowledge

At their core, United States intellectual property regimes are “designed to help individual authors profit, not to help collective cultures survive and develop.”72 Courts have been adamant in their “conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’'”73 In most cases, American IP law does not concern itself with the personality interests, or “creative soul,” of an artist or work.74 Instead, United States intellectual property regimes are shaped and directed toward the ultimate end of providing economic “rewards commensurate with the services rendered.”75 A conflict immediately arises between the goals and assumptions of United States intellectual property law and the nature of the intangible resources that tribes often seek to protect. Typical Western focus on “the lone originator, the free agent, the creative genius often conflicts with the more communal focus of native peoples, in which identity and rights derive from membership in clan, kinship and tribal networks.”76 Copyright law, for example, protects “original works of authorship fixed in any tangible medium of expression.”77 It envisions artistic expression as the product of a lone, profit-motivated creator and uses a limited-duration monopoly to incentivize creative production. American copyright law does not recognize the fact that “some forms of artistic expression may not be nor were ever intended to be set down in a fixed medium.”78 It does not distinguish between works that entered the public domain after purposeful commercial exploitation by their creators and works that were recorded, shared, or published without their creators’ consent.79 This reality is painfully apparent for indigenous artists such Ami elder Lifvon Guo, whose performance of the Ami Song of Joy was digitally incorporated into Enigma’s 1994 hit, Return to Innocence.80 Lifvon Guo’s performance of Song of Joy was recorded and incorporated in Return to Innocence entirely without his (or the Ami’s) knowledge, but the song itself is a communally created chant passed down by the Ami for generations.81 As a consequence, Guo and the Ami have no power “determine the fate of the recordings, reap the rewards of their own creation, or control resulting violations of tribal law and blatant distortions of their work.”82 So far as indigenous cultural resources remain intangible, unfixed, or communally owned, no copyright protection is available. Patent and trademark protection for Native American cultural resources suffer a similar fate to copyright. The novelty requirement in 35 U.S.C. § 102 means that “patenting [for] centuries-old cultural knowledge is unavailable.”83 Time bars for public use deny patent protection to techniques and practices “considered new by the larger world, yet long used within the confines of" Native American communities.84 The utility of trademark protection for tribes is likewise limited by “its commercial basis and focus.”85 To bring a trademark claim, “a party must be a competitor in the market.”86 Native communities that wish to keep intangible cultural resources out of the market are left with self-contradictory claims: they are asked to demonstrate commercial harm when the real harm felt is commercialization itself. Their primary remedy has been to petition the United States Patent and Trademark Office (USPTO), challenging the registrability of an appropriated mark rather than its actual use.87 Even when a tribe is victorious before the USPTO, however, an appropriator need not stop using the now-unprotected mark: the Washington Redskins, for example, continued to sell Redskins gear for years despite cancellation of their trademarks in 2014 as “disparaging to Native Americans.”88