NO SPILLOVER. The nature of indigenous works is distinct from other forms of traditional performance.

[*1437] Examining the ontological nature of powwow creativity reveals that it is a living and varied cultural form practiced in distinct ways by Indigenous communities and individuals across North America. It is also an appropriation-based creative form by nature. Powwow culture is said to have originated among the Omaha people in the present-day upper Midwestern United States, but quickly developed as it spread to other regions as individuals learned the form and contributed new content to its musical, choreographic, design, and literary styles. 306 During times when the United States prohibited certain forms of Indigenous dance, 307 powwow creatives often took professional positions with Wild West shows to participate in, perpetuate, and develop the form. 308 And, when Indigenous youth across North America were removed from their homes by the federal government to attend mandatory boarding and trade schools, students would come together to share and dance powwow as a means of developing common ground and unity. 309 The same is true today in the urban Indigenous environments within which I have conducted research, where powwows become the only "Native-sanctified spaces" around. 310 Thus, while powwow may have originated as a purely ceremonial form, it is articulated and valued as a mode of collective resilience and community-building throughout North America, sometimes retaining its ceremonial function while in other contexts becoming a mode of artistic expression or a demonstration of cultural virtuosity.

While powwow is an inclusive creative environment, appropriations of powwow culture that violate local protocols regulating relationships among participants impair incentives to create. Powwow culture circulates within an economy grounded in respect, attribution, reciprocity, and, in some cases, capital [*1438] accumulation. Given its tradition of open sharing, there is - as far as I am aware - no absolute bar to non-Indigenous Boy Scouts drawing from the forms and styles of powwow to participate in powwow events. One need not be Indigenous to sing, dance, create regalia, or buy goods at a powwow, though preference is sometimes given for Indigenous people to sing or dance in certain powwows to the exclusion of non-Indigenous powwow goers. 311 That said, powwow creators do generally rely on expectations that those who use or borrow the specific instances of powwow culture they or their community create (songs, beadwork, etc.) will follow established protocols that govern the use of that culture. 312 These protocols create an economy that demands payment in the form of attribution, honor, and respect, and may sometimes require financial compensation for those who expend significant effort to create meaningful or powerful new works. Competition powwows, for example, provide an important income stream for participants, motivating them to produce some of their most creative and innovative expressive culture while at the same time rewarding those who follow protocols of decorum and adherence to established values and aesthetic principles. 313 Thus, when local protocols of respect are broken, or powwow creativity is used without providing the appropriate compensation, the social and economic incentives to create new work are diminished.

Uncompensated appropriation of powwow culture, which could result from a violation of cultural protocols or the failure to pay the appropriate price for use, thus negatively affects the networks that create powwow culture and the Indigenous communities that foster these creative environments. If the Boy Scouts disregarded existing protocols and negatively impact the ability of other powwow goers to participate and create within this environment, this would clearly weigh against fair use. If the negative impact were significant enough, it might be sufficient to outweigh the other factors. In sum, whether established protocol has been followed with respect to the use of an existing cultural work should be at the heart of the second factor analysis for these sorts of "educational" appropriations of Indigenous culture.

2. The Nature of Recorded Ceremonial Songs

Laura Boulton and other early field workers gathered thousands of copyrightable works from Indigenous peoples around the world. As discussed in [*1439] Part I, copyright protected some of these recordings and, in some cases, the literary, musical, or dramatic works they contained. 314 But given the power imbalances present in these early recording encounters, many recordists, including Boulton, considered it unnecessary to secure written, oral, or even implied licenses from their Indigenous collaborators to use their recordings and other works. 315 Without securing the appropriate rights to use these recordings, the question now is whether unauthorized uses of these recordings can be justified under the doctrine of fair use.

Without a rehabilitated second factor, Laura Boulton's unauthorized commercial release of thousands of Indigenous ceremonial song recordings through her labels, Victor and Folkways, may perhaps be justified under the doctrine of fair use. Looking at the first fair use factor, it is clear that the purpose and character of Boulton's use of the recordings was primarily educational, which would generally favor fair use. Additionally, in terms of the fourth factor, the effect of Boulton's release on the market for the recordings was probably quite small. It is very unlikely that Boulton's release of the recordings has usurped or would in the future usurp the market for the recordings. In fact, but for Boulton's sale and distribution of them, the public may never have had access to these recorded ceremonial performances. 316 On the other hand, Boulton did use entire recordings rather than only small samples, which would typically weigh against fair use. But, given the significant weight the first and the fourth factors typically have on the fair use analysis, it is reasonable that they might be sufficient to tip the scale in favor of fair use.

Taking into account the second fair use factor, including an assessment of the ontological nature of the work and its impact on the creative environment, one sees the extent of the impact unauthorized uses might have on the creative networks that generate the ceremonial performances Boulton and others recorded. Ceremonial song recordings like the ones Boulton copied and distributed are often ontologically distinct from other kinds of sound recordings, like music albums, film soundtracks, audio books, or oral history interviews. The networks that produce these kinds of recorded performances often extend far beyond typical industry players, such as a composer or songwriter, a performer, a sound engineer, and perhaps a record label, music publisher, or distributor. As I learned during fieldwork among Hopi ceremonial performers, producing the kinds of songs Boulton recorded required spending months vocalizing in the corn fields below the Hopi villages over a growing season, laboring to perfect the aesthetic of each song they sang. They then engaged in months of collaborative editing with cultural experts, collectively memorizing and rehearsing the songs. [*1440] In some cases, performers must obtain specific authorization from political or cultural leaders before the songs can be performed in public.

These performers take these steps because, unlike a typical music performance, the function of ceremonial song performances is not merely to entertain: they are not representations of abstract musical works. Rather, these are voices of Hopi communities doing performative and generative acts which have direct effects on Hopi society and the environment, even in recorded form. 317 Hopi ceremonial performances are authoritative within their territory; they are the material of Hopi sovereignty. 318 Each step in the process of creation and performance triggers established expectations of reciprocal payment, adherence to ceremonial protocols and authorities, and other community obligations.

If appropriation of ceremonial sound recordings outside of established protocols were permitted, the economy for the creation of these kinds of ritual performances would be severely disrupted. Each actor in the creative network for a ceremonial song depends on the others for a successful ritual performance. Removing the incentives to create ceremonial performances or allowing ceremonial creativity to be used in violation of local protocols or without proper authority, harms the integrity of the entire creative network and diminishes Tribal sovereignty. 319 Even now, while sound recording has become a useful tool for Hopi Tribal members to develop and preserve their cultural creativity, Hopi villages have been forced to severely restrict documentation of ceremonies out of concerns about unauthorized appropriations. One can only imagine the harms experienced by creators when they invest in a lengthy, collaborative effort to create, perform, and document a new ceremonial performance, meticulously following community protocol, only to have that recording suddenly turn up on iTunes for sale without permission and out of its appropriate cultural context.

[*1441] Thus, in applying the rehabilitated second fair use factor to Boulton's appropriations of Hopi ceremonial culture, the nature of the song recordings and the harms that would be occasioned by their unauthorized public sale should weigh heavily against fair use, perhaps overcoming the other fair use factors.