The Copyright Act is rooted in western ideology that leaves indigenous knowledge ineligible and thus vulnerable to cultural appropriation. A new understanding of authorship as communal connects customary law to existing legal framework and protects Traditional Cultural Expressions.

Steffe 23 (Luke Steffe, Indiana University Maurer School of Law, J.D. cum laude, Protection and Prevention: The Shortcomings of U.S. Copyright Law in Combatting Cultural Appropriation in the Fashion Industry, https://www.repository.law.indiana.edu/ipt/vol12/iss3/4/, IP Theory Vol. 12: Iss. 3, Article 4, Summer 2023---gm)

A.

Originality

The Copyright Act offers protection only to original works. Originality is required by the Constitution, as explained by the U.S. Supreme Court in the seminal case Feist Publications, Inc. v. Rural Telephone Service Co.50 Although a low threshold, "a modicum of creativity" is required for a work to be considered originalS Further case law shows that, as it stands, copyright protections extend only to original works created by an author falling within one of the three classes of authorship: an individual author, joint authors, or an employee creating a work made for hire.2 Works that enjoy copyright protection stem from the original thought, skill, or labor of an identifiable author, and a work derived from a pre-existing work must show a substantial variation to the extent that the variations themselves merit protection under the Act.$3

The very essence of TCEs prevents them from reaching of this threshold, as they customarily pass down from generation to generation. The precise reproduction across generations is essential to maintaining the integrity and cultural significance of TCEs.SS These designs and prints carry centuries worth of heritage and only vary trivially from their previous form.56 To achieve this revered level of cultural significance, preservation, not innovation, is the goal of Indigenous art; thus, the current text of the Copyright Act does not consider TCEs original. S Additionally, modifications that occur across generations are minimal and do not meet the substantial variation test for originality in works based on pre-existing works.58 In the rare case that Indigenous designs undergo more than a trivial amount of modification, they receive only a limited, "thin copyright" protection. 59 Currently, the only available workaround to satisfy the originality requirement, requires Native American or Alaskan Native Tribes to grant permission to an author, likely a member of the Tribe, to individually make and claim protection for an original design or garment based on the TCE they desire to protect. These protections belonging to an individual member of the community, rather than the Tribe as a whole, directly conflict with the communal nature of these cultural expressions, and equity calls for the protection of Indigenous designs without this dissatisfactory workaround approach.® Moreover, requiring the original work to vary from the ICE itself compromises the cultural integrity of the design. In reality, this workaround approach creates a race between Indigenous communities and fashion designers to create an "original" variation of the TCE and register it first.

B.

Authorship

The Copyright Act identifies three types of authorship: sole authorship, joint authorship, and works made for hire.62 A sole author is an individual who either produces or superintends the production and serves as the "mastermind of the work. 63 Joint authorship occurs when two or more authors contributions combine to form an inseparable or interdependent work with the intention and agreement to create a joint work.64. The Copyright Act's conception of authorship follows a rationale derived from romantic individualism, which considers writings to be the product of one man's unique thoughts transcribed for the rest of the world to read65 This individualistic approach contrasts with earlier thinking where authors such as Plato and Aristotle considered themselves curators more than creators, reflecting on inspiration and ideas from the society in which they lived.6 The romantic roots of modern copyright law conflict with Indigenous notions of authorship, which align more closely with that of Plato and Aristotle.

Looking at the very heart of the construction of the U.S. copyright regime provides insight into why TCEs are incompatible with the protections currently offered. To this point, Lou-Ann Neel and Dianna Bin, artists and members of First Nations, a community indigenous to Canada, point out that their language lacks a single word for an artist.& They note: "Instead, we have words and phrases that describe individuals or groups of individuals as being knowledgeable or skilled in a particular area of creative works . ...»69

These classifications as groups of creators rather than individual artists demonstrates the disconnect between current law and Indigenous conceptions of authorship and supports the need for developing a broader understanding of who, and what, constitutes an author as defined by the Copyright Act.

In addition to the challenges around conflicting conceptions of authorship, practical and substantive legal issues exist that result in Indigenous designs failing to meet the authorship requirement. The passing of these TCEs between generations makes it challenging, if not impossible, to identify an author. In Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court defined an author as "he to whom anything owes its origin; originator; maker." The law considers works without an identifiable author, or group of authors, as unauthored and thus unworthy of copyright protection. 72 Often, multiple members of a community, across multiple generations, collaborate to create Indigenous textile designs." Thus, these sacred garments cannot enjoy copyright protection and will exist freely in the public domain until a "valid" author claims them as their own-often an outsider who appropriates and strips these designs of their sacred meanings.

Because the Act confers real-property rights that divide equally amongst joint authors, the current legal framework makes it extremely difficult to grant and devise meaningful property rights to a fluid group of people. Thus, any potential solutions must re-envision the concepts of authorship and joint authorship and offer a way to reconcile this collective interest and ownership of the works.76

C.

The Public Domain

Entrance into the Berne Convention for the Protection of Literary and Artistic Works, a multi-lateral treaty, and compliance with its terms fundamentally shaped U.S. copyright law as it exists today.? Concepts of originality, fixation, term, and authorship push TCEs outside the umbrella of protection established by the Berne Convention and into the public domain.?8

As a result of their cultural significance, Indigenous designs in fashion often serve as references and cultural markers for outside groups to use as a lens into these traditional cultures.? Because TCEs belong to no identifiable author and thus exist in the public domain, they are free to be exploited and manipulated under the terms of the Copyright Act. 8 This exploitation leads not only to appropriation but to obtainment of copyright protections by outside groups over near-replicas of these garments since originality only requires a trivial amount of modification from the Indigenous garment designs. To receive full intellectual property rights for these stolen cultural expressions, outsiders simply need to register the copyright first because the first "author" of an original work enjoys copyright protection. Thus, identifying an outsider as an author satisfies the requirements of a valid copyright and will result in the full enjoyment of protections under the Act.

For example, Feral Childe, a clothing label for women, currently holds a copyright for "Teepees" used to protect its signature pattern, an abstract depiction of these TCEs. $2 Facilitated by their existence in the public domain, Teepees are just one example of an Indigenous expression of culture becoming mainstream.

As with authorship, a conceptual disconnect exists between Western and Indigenous conceptions of the public domain. Scholar James Leach notes that intellectual property operates under Western ideas of property rights compared to the many traditional cultures operating under their own system of communal rights. $ Indigenous communities view their designs and TCEs as "building blocks of their heritage which to them is a bundle of relationships rather than a bundle of economic rights.'85 While TCEs exist freely among their respective communities, this does not indicate the intention to be available in the broader public domain. $6 In fact, the public domain is not a concept recognized by some Indigenous communities.*? The sad irony of the current copyright framework is that the very concept that subjects Indigenous designs in fashion to free exploitation and modification is not recognized by the communities this appropriation harms. TCEs, when existing in the public domain, may never receive IP protections and thus cannot be subject to enforcement. Therefore, to effectively offer protection to these culturally significant designs, a solution must incorporate customary law into the real-property framework of existing IP protections.

ADAPTING THE COPYRIGHT ACT TO PROTECT INDIGENOUS DESIGNS IN FASHION

Fashion reflects a dialog between society and culture, drawing inspiration from the world in which it exists. Culture inherently influences the creative process, and TCEs must have additional protections to ensure this inspiration does not devolve into appropriation. 9 Native fashion contributes to this creative conversation by using design to embody a community's cultural and social identity, and the availability of copyright protections offers both protection from cultural appropriation and agency to license and exploit TCEs as their rightful owners see fit.

A.

Overarching Considerations for Solutions

These garments, accessories, and prints, all of which represent, and belong to, a community, fall within the scope of customary law.?3 The expansion of copyright protections must consciously work to incorporate traditional notions of communal property rights without stifling the creative process inherent in completely isolating access to TCEs. More importantly, legal solutions must be mindful of Tribal sovereignty any time federal policy applies to Indigenous communities."S Integrating customary law into current legislation, both through interpretation and amendment, will respect these considerations and allow TCEs to enjoy the full extent of the protections and legal remedies offered by the Copyright Act.? The primary goal of these solutions must aim to grant Indigenous communities the complete autonomy to protect and exploit their TCEs as they see fit." A solution ought not attempt to force copyright protections on all designs but instead provide the option for both proactive (registering valid copyrights) and reactive (prosecuting infringement) legal protection. Different handlings of TCEs in copyright regimes around the world offer valuable insight into the mechanisms of implementing these much-needed protections. This final Part will explore how international copyright schemes protect TCEs and suggest ways to incorporate these legal concepts into U.S. copyright law. Specifically, these solutions aim to broaden Western concepts of authorship to recognize communal authorship and offer post-registration protection by strengthening moral rights in the United States.

IP THEORY

Broadening Current Legislation to Incorporate Customary Law

After several failed attempts to protect fashion design through legislation, the Supreme Court solidified the scope of copyright protection available for fashion design in Star Athletica, L. L.C. v. Varsity Brands, Inc. 98

Before this shift in jurisprudence, the fashion industry did not enjoy the full extent of copyright protections because aesthetic elements of clothing were considered inseverable from the useful object to which they attach.? The Court dispensed of this notion in favor of an expansive reading of the Copyright Act, establishing a two-prong severability test under which a design merits copyright protection if (1) it can be separately perceived as a two or three-dimensional work separate from the useful article and (2) that design, on its own, qualifies for copyright protection. 100 Under this expanded understanding of severability, the Copyright Act now unquestionably protects against the unauthorized reproduction of garments, textiles, and patterns or prints.101

While this case did not directly relate to Indigenous designs in fashion, it exemplifies the feasibility and positive impact of expanding the interpretation of the Copyright Act; moreover, by undeniably granting protection to fashion design categorically, Star Athletica increases protections available to Indigenous fashion design. In 2015, the great-granddaughter of an Inuit shaman discovered that high-end fashion house Kokon To Zai (KTZ) had appropriated a caribou skin parka in the form of a sweater. 102 The parka, crafted in the early 1900s, served both culturally significant and utilitarian purposes, with two artistic motifs protecting the breasts and three motifs covering the stomach. 103 Before Star Athletica, this parka's utilitarian aspect would have barred it from copyright protection. 04

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.

A Broadened Category of Authorship

Both the economic monopoly and legal protections offered to a work of art under the Copyright Act hinge on the work satisfying the parameters of a valid copyright. Thus, to begin the fight against cultural appropriation, the criteria of a copyrightable work must accommodate the communal and generational nature of TCEs. The collective authorship exhibited by TEs does not satisfy the Act's definition of authorship and presents a fundamental hurdle to their protection. 106 The recognition of communal authorship will overcome this hurdle and simultaneously satisfy the Act's originality and authorship required by §102. Under a regime recognizing communal authorship, an Indigenous community can claim ownership of pre-existing works, and the work of successor generations can then be classified and protected as a lawful derivative work. 107

Judge-made law can effectuate these changes, as demonstrated by the Federal Courts of Australia. In a line of cases regarding the protection of Aboriginal art, the courts recognized the need for an expanded notion of authorship to afford sacred Aboriginal art copyright protections. 108 In the 1994 case, Milpurrurru v. Indofurn Ltd., a carpet manufacturer appropriated designs of eight Aboriginal artists, producing the paintings nearly identically on its carpets. 109 Despite the copyright statute only providing for actual damages based on economic depreciation, the court recognized that customary law allowed for strict enforcement against infringement and offered a range of damages for the clan. I The court grappled with the existing statutory framework's inability to rectify harms felt by Aboriginal communities as a whole rather than an individual or corporate entity. Restrained by the statute's text, the court turned to an infrequently used provision allowing for damages in cases of egregious infringement. 112 For the first time, the court expressly considered customary law in conjunction with the existing legal framework during their assessment of damages. 113

Only a few years later, in 1998, the Australian courts took another step towards recognizing the communal ownership interests of Aboriginal communities. In Bulun Bulun v. R & I Textiles Pty Ltd., a famous Aboriginal artist brought suit for infringement when an Australian fashion company reproduced his work, depicting a sacred location, on textiles. 114 Bulun Bulun argued that his clan entrusted him with the sacred duty of producing these works, thereby making the art the clan's property and not his own. 5 While the court did not expressly expand authorship to the community, the opinion recognized that the "paintings were] a physical manifestation of the fiduciary relationship between the artist and his community. 116 The court ultimately dismissed the clan's representative from the suit but first recognized that if Bulun Bulun had breached his fiduciary duty by inappropriately exploiting these sacred works, the clan could seek legal remedy. Notably, the court forecasted a scenario where a fiduciary duty, established by customary law, would be recognized and enforced by Western law. Despite not acknowledging the clan as a communal author, the court expressly acknowledged its defensible interest in its intellectual property. This hypothesized bridge between customary and Western law lays the foundation for incorporating communal authorship into the existing U.S. copyright regime.