Indigenous Copyright - Michigan 7 2024

Notes
A big thank you to everyone who helped put this file together: //BB(G), Rory, Sarah, Hannah, Megan, and Gabby.
The biggest thank you goes out to the BIGGEST G: Trevor G Reed. Without him, this would quite literally not be possible. When it seemed like there was absolutely no lit on this, we discovered Trevor G. He gave us hope on our darkest days. Thank you….
There are 2 versions of the AFF.
1---The second fair use factor.
Currently the court determines whether something qualifies for fair use based on 4 factors: how transformative the work is in comparison to the original, what the nature of the work is, whether it is for only commercial purposes, and how much the market value of the original product would change after the second product.
The courts have basically not used the second factor for anything. The AFF argues that the second factor should be used more and expanded to interrogate the ontological nature of the work and the potential impact of unauthorized appropriation of a work on its creative environment. This would help a lot of indigenous communities because works like ceremonial songs, traditions, etc. which have large impacts on indigenous communities are easily appropriated and are easily abused under fair use.
2---Communal authorship.
In the status quo copyright authorship is generally offered to only individual authors (a few exceptions but they’re largely irrelevant). This is a major barrier to indigenous people’s ability to copyright culturally significant items as most indigenous groups don’t perceive a single owner of an item, but rather that each member contributed—especially for inter-generational traditions. Subsequently, many Traditional Cultural Expressions (TCEs) are left vulnerable to large companies to misuse (cultural appropriation). The plan would recognize a right to communal authorship, which would allow for group ownership of a copyright. The Farley/Steffe evidence indicates indigenous people would file more copyrights if able to.
Importantly, the plan does not force anything to be copyrighted and would still allow for indigenous autonomy.
***Some 2AC arguments will only apply to a specific aff so make sure to check the brackets in front of a card on which one it might apply to.
1AC---Second Factor
Advantage---1AC---Second Factor Version
Appropriation---1AC
The advantage is APPROPRIATION.
Current American copyright law fails to protect indigenous creative works, perpetuating a violent history of cultural dispossession.
Reed ’21 — Trevor G., (Hopi) Associate Professor of Law at Arizona State University’s Sandra Day O’Connor College of Law., California Law Review; (August 2021; “Fair Use as Cultural Appropriation”; California Law Review, Vol. 109:1373; DOI: https://doi.org/10.15779/Z38V97ZS35.; ror)
C. Copyright and Indigenous Culture
Copyright exists to promote cultural production, 75 regardless of the social group that creates it. As American society has grown and evolved over time, copyright has historically crept in to regulate the production and circulation of culture by granting exclusive rights to creators for the original works they produce. 76
Consider the way the subject matter of copyright has expanded in step with changes in the ways Americans have defined culture. As professor Raymond Williams points out in his history of the term, culture at the time of the founding meant a "general process of "inner' [intellectual, spiritual, and aesthetic] development," one that had become nearly synonymous with term civilization (i.e., being "cultured"). 77 But, with the rise of the industrial revolution and public dissatisfaction with the changes it wrought on society, culture acquired a second definition, signifying a "set of higher standards" or intangible ideals often embodied in art, music, and literature, that pointed out civilization's weaknesses. 78 In parallel, the original Copyright Act of 1790, passed by the first Congress, was narrow in its scope and protected only books, maps, and charts 79 - objects reflective of the new country's cultural priorities, such as intellectual cultivation, political discourse, and Enlightenment science. 80 But, [*1392] over the course of the nineteenth century, Congress added to the Act the "arts of designing, engraving, and etching" in 1802, 81 followed by musical compositions in 1831, 82 and plays and other dramatic works in 1856. 83 These expansions no doubt reflected the public's new priorities as American culture developed in response to growing industrialization. 84
Toward the turn of the twentieth century, growing resistance to a universal, European-descended "high culture" ultimately produced a third definition of "culture": "the way of life ... of a people." 85 Scholars in the emerging social sciences began to focus on comparing and taxonomizing cultures in other parts of the world, at times defining some as primitive or ancient and others as modern. 86 With the diversity of cultural creativity happening in the United States by the beginning of twentieth century, American copyright law likewise evolved to cultivate much more than European-descended forms of "high culture." 87 In Bleistein v. Donaldson Lithographing Company, the Court considered whether a set of circus posters could be considered copyrightable. Writing for the majority, Justice Holmes opined that works of "little merit or of humble degree" and those "addressed to the less educated classes," at least from the point of view of elite judges, were eligible for protection under the copyright law. 88 He rejected the notion that copyright protects only the cultural creativity of certain social groups:
If [the posters] command the interest of any public, they have a commercial value, - it would be bold to say that they have not an aesthetic and educational value, - and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. 89
According to Justice Holmes, advertisements - such as those depicting the creative work of Barnum and Bailey - should be protected under the same [*1393] rationale as the "fine art" of Goya, Manet or Degas. 90 Effectively, copyright provided a means for "any public" to develop and protect its creative interests, regardless of whether its "tastes" or forms of expression conflicted with the "hopes" of the "higher classes" for society's overall "civilization." Thus, by the turn of the twentieth century, the scope of copyright had grown to include the creative products of any cultural group, as long as those products met the minimum constitutional requirement of being a "writing" of an "author." 91
But, while Justice Holmes's broadly inclusive view of the nature of copyrightable works rejected any explicit distinction between various forms of culture, over the twentieth century Congress and the courts have perpetuated and developed limitations on the subject matter of copyright. These limitations have left Indigenous peoples' and other marginalized groups' cultural creativity significantly under-protected in comparison to other forms of culture. 92
Commentators have generally located the source of the Copyright Act's unequal treatment of Indigenous creative works in the three requirements for copyrightability that Congress and the courts have inferred from the Constitution. 93 First, copyright requires that all works be "written" or otherwise "fixed in any tangible medium of expression" to qualify for protection against unauthorized appropriation. 94 As many Indigenous creative works historically have not been written or recorded in physical objects, but instead have been retained in collective memory - such as songs, oral histories, stories, and [*1394] dances - the fixation requirement may render these works ineligible for copyright protection. 95 Second, copyright's authorship requirement requires that all works be "original," 96 meaning a work owes its origin to one or more authors 97 and is sufficiently creative to qualify as a "work of authorship." 98 Thus, a ceremonial song or ritual object that has been faithfully performed or exactly replicated since time immemorial likely does not qualify for copyright protection, nor will one that does not have human origins. 99 Finally, copyright protection does not extend to "any idea, procedure, process, system, method of operation, concept, principle, or discovery," regardless of the form it takes; it protects only "expression." 100 Often, Indigenous peoples value cultural products precisely for the histories, processes, or principles they contain. When they attempt to protect those aspects of creative works from unauthorized appropriation, they unfortunately find that copyright law explicitly makes these aspects of a creative work freely available to the public. Thus, owing to these three threshold requirements, many forms of Indigenous culture may be considered, at least from the perspective of U.S. copyright law, to be in the public domain and can be readily appropriated without permission. 101
[*1395] But even with the burden these requirements place on Indigenous creators, a large amount of Indigenous cultural material is currently eligible for copyright protection. Indeed, in the following subpart, I explore three examples of copyrightable Indigenous creativity. And yet, while these works likely qualify for copyright protection, the fair use doctrine and other limitations on a copyright holder's rights as currently interpreted may allow for their unauthorized appropriation.
D. Appropriating Copyrightable Indigenous Culture: Three Case Studies
To evaluate how copyright law operates in instances of cultural appropriation, I explore three paradigmatic examples of Indigenous cultural works that are currently being used without permission. These case studies provide concrete examples of Indigenous cultural expressions that likely qualify for copyright protection. But they also show how easily non-Indigenous appropriators can disregard that protection.
Further, these cases point out just how difficult it is to generalize about the harms cultural appropriations cause. Often, the harms stemming from cultural appropriations depend on the nature of the culture in question, including the relationships and creative networks that support, develop, and produce it. As Bethany Yellowtail, a prominent Indigenous fashion designer recently explained, "It's so complicated trying to explain cultural appropriation because people are like, oh it doesn't matter, get over it. But I'm not going to get over it, this affects my family." 102 Given this complexity, I argue in Part III that analyses of copyright infringements involving cultural appropriations should include a more contextualized look into the nature of the culture in question and the impacts on the kinds of relations and environments that generate it and are affected by it.
1. Educational Experimentation: Boy Scout Indigeneity
The borrowing of Indigenous ceremonial culture for seemingly "educational" purposes is a perpetually common mode of cultural appropriation from Indigenous communities. For example, The Boy Scouts of America operates a number of youth programs, including the Venturing program for fourteen-to twenty-year-olds, which engage youth (organized into local Venture "Crews") in long-term team projects through which they develop life skills and personal ethics. Remarkably, a number of non-Indigenous Venture Crews focus on performing powwow, a form of Native American ceremonial and social [*1396] dance, as their site of self-development. 103 Crews craft regalia, learn dance steps, and perform at public powwows. 104
<Comment Text> Over the course of anthropological fieldwork exploring Boy Scout appropriations, 105 I learned that unauthorized uses of powwow culture are widespread and take a variety of forms. 106 At one lodge I visited, nearly every Tuesday night, Venture Crew participants would sit at long wooden tables covered with sewing machines; hot clothing irons; white, black, red, and yellow feathers and ribbons; and images they had copied from the Internet. 107 Each Crew member worked for several hours at a time carefully creating their regalia for the next powwow. In preparation for their handiwork and performances, the Crew members I met dedicated their time to researching the history of American colonization and its devastating effects on Native American communities. But, they also spent [*1397] considerable time researching and copying the themes, designs, and artworks of Indigenous and non-Indigenous creators they found in articles, on websites, and through various image searches, many of which they then incorporated into their own powwow regalia.
Crew members were keenly aware that some in the Indigenous communities in which they performed found their appropriations of Indigenous culture - including appropriations of at least some copyrightable pictorial or graphic works - deeply offensive. Beadwork, ornaments, and other conceptually separable designs affixed to or embedded in powwow regalia are often newly created, original, and fixed in the regalia by the dancer that wears them, likely qualifying them for copyright protection. 108 These works typically carry significant personal meaning for the dancer, not to mention they provide an important space for creativity within this vibrant cultural form. Nonetheless, many of the scouts and their leaders I spoke with pointed to powwow's history of inclusion, community-building and sharing, and their own desires to respectfully support their local Indigenous community, as justifications for their assumption of powwow culture.
Over the course of my fieldwork, I also had the opportunity to speak with members of the Native American communities alongside whom the Boy Scouts danced. These communities took a variety of positions on the Boy Scouts' appropriations of powwow culture. Some vehemently opposed it, while others welcomed the Scouts openly. 109 Most erred on the side of hesitant inclusion while acknowledging that these Scouts held the kind of privilege that made it possible for non-Indigenous suburban teenagers to "play Indian" 110 at regional powwows, including those hosted by the federally funded National Museum of the American Indian. 111
Boy Scout appropriations of Native American powwow culture, then, may involve the unauthorized use of copyrightable materials owned by Indigenous artists and their fellow powwow participants. While these uses are offensive to some in the Native American community and less concerning to others, whether they give rise to a legally enforceable copyright infringement claim will likely depend on whether these Boy Scout appropriations fall within copyright's fair use exception.
[*1398]
2. Commodifying the Exotic: The Music Hunter
The unauthorized reproduction and distribution of Indigenous culture as an exotic commodity is a second paradigmatic form of cultural appropriation. 112 For example, Laura Boulton, the self-proclaimed "music hunter," 113 collected a vast number of ceremonial songs from Indigenous peoples around the world from the 1920s until the late-1960s. 114 In 1929, she traveled to Africa together with her soon-to-be ex-husband, an ornithologist, to record Indigenous songs that she would later play for paying audiences as she traveled the public lecture circuit in the United States. 115 In 1933, she then traveled to Chicago to record Indigenous peoples hired to inhabit a troubling exhibit entitled "The Indian Villages" at the A Century of Progress exposition. This was a world's fair of sorts displaying the most advanced American technological innovations of the day purposefully juxtaposed against exhibits of traditionally dressed, living citizens of Native American Tribes. 116 Seven years later, she traveled to the Southwestern United States to collect additional Indigenous songs from several Tribes 117 and then proceeded to record Indigenous peoples in Central America, Canada, Alaska, and several locations in Asia. 118 Altogether, she collected roughly 30,000 song recordings. 119
Over her career, Boulton assembled numerous albums of these Indigenous song performances, which she then licensed to two commercial labels, Victor Records and Folkways Recordings. 120 These labels sold thousands of copies of Boulton's albums to the public through 1986, after which the Smithsonian [*1399] Institution purchased Folkways records and continued to produce its catalog. 121 Boulton sold the rights to her remaining recordings to Columbia University as part of a $ 400,000 deal between the University and a wealthy octogenarian suitor. 122 Boulton's recordings remain the primary research collection for Columbia's Center for Ethnomusicology, 123 while Smithsonian-Folkways continues to sell or license Boulton's albums of Indigenous songs through physical sales, digital downloads, and streaming. 124
Historical evidence in Boulton's papers suggests that she was an astute negotiator and understood copyright law at far more than a cursory level. 125 Yet, she, together with her labels, apparently managed to create tens of thousands of copies of Indigenous music without ever obtaining a copyright assignment or license from her Indigenous informants. 126 Such a transfer, explicit or implied, would have been necessary under the common-law rule of the day for her to reproduce and publish the recordings unilaterally. That is because sound recording copyrights - at least for the recordings made in the United States - [*1400] generally vested in performers rather than recordists. 127 Boulton likely knew that at least some of the recordings she made were of original compositions, and that the sound recordings of her Indigenous informants' musical performances were copyrightable. 128 She also likely knew that some of her recordings were subject to special Tribal protocols or local laws governing their circulation and performance, and in at least one documented instance she agreed to uphold those protocols. 129
Boulton's unauthorized use of her Indigenous informants' copyrightable musical works and sound recordings, and the Smithsonian's continued sale of these recordings, demonstrates either a doubtful ignorance or a complete disregard for the intellectual property rights and local protocols of these Indigenous peoples. But whether it amounts to copyright infringement likely depends on whether her use of the recordings falls within the contours of copyright's fair use doctrine.
3. Indigenous Renaissance: Reclaiming Ancestral Voices
Finally, consider a contrasting, contemporary example of Indigenous artists who are actively re-appropriating their ancestors' cultural works, sometimes against the copyright interests of non-Indigenous individuals and institutions who own them. One of the most prominent examples of this Indigenous renaissance is First Nations artist Jeremy Dutcher, 130 who recently won the prestigious Polaris Prize for best Canadian music album of the year, based on [*1401] artistic merit. 131 The album, titled Wolastoqiyik Lintuwakonawa, showcases Dutcher singing his original compositions that reinterpret and reincorporate traditional Wolastoqiyik (Maliseet) songs recorded by William Mechling, an anthropologist who visited the Wolastok First Nations in the early 1900s. Dutcher, who is Wolastoqiyik from the Tobique First Nation in present-day New Brunswick, traveled to the Canadian Museum of History in Gatineau, Quebec, after being directed by an elder in his community to learn more about his community's songs held in the Museum's archives. 132
Dutcher's reanimation of the Mechling recordings is a striking manifestation of contemporary Maliseet culture. Dutcher, an operatic tenor and classical composer by training, spent nearly five years transcribing and internalizing the recordings in preparation for the album - a creative process he refers to as "deep listening." 133 Meanwhile, Dutc

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