Why IP Law is Failing Native American Tribes

By: Katherine Czubakowski

Following the numerous protests and the cultural discussion surrounding racial identity which took place over the summer, and with immense pressure from financial sponsors, the Washington Redskins football team finally decided to stop using the offensive racial slur in their name.  But this is not the only example of commercial misuse of Native American culture and identity: the Cherokee Nation has repeatedly requested that Jeep stop using their name on its cars; the Navajo Nation recently sued Urban Outfitters over their product lines branded as “Navajo” – including underwear and flasks – which appropriated traditional Navajo designs as well as tarnishing the Navajo name; and Hopi Blue Popcorn has long marketed itself using native culture, despite not having any connection to the Hopi tribe nor actually containing the blue corn the tribe considers sacred.  So why are tribes particularly at risk of having their names and culture misappropriated?

To answer this question, it is important to first understand the fundamental assumptions surrounding Western intellectual property laws, which protect valuable ideas.  There are four major types of intellectual property protections: trade secrets, trademarks, copyrights, and patents.  All of these assume that someone, be it an individual or a company, has created something of value which they want to exclude all others from using for a period of time.  Trade secret law allows for the infinite protection of a commercial secret as long as the individual or company makes reasonable efforts to keep it secret.  Examples of trade secrets are the code behind software programs and particular methods of manufacturing particular products which improve their quality.  Trademarks keep others from using a name or symbol which is used in commerce as an identifier of a specific product or set of products.  They are also of unlimited duration as long as the mark is in use.  Some famous trademarks include the Nike swoosh, the name “Google,” and the Apple symbol.  Copyrights aim to protect creative expressions which have been fixed in a tangible medium, but do not protect the underlying facts or ideas contained in them.  Copyrights are of limited duration (usually the life of the author plus 70 years) and must be registered by the creator of the work.  Copyright can cover books, such as Harry Potter, songs, like Bohemian Rhapsody, and artistic works, like Andy Warhol’s Campbell Soup Cans.  Finally, patents are the only protection which must be registered through the United States Patent and Trademark Office to be valid and are used to protect technical advancements or inventions.  Together, these four protections generally aim to incentivize creativity and innovation by creating a limited monopoly for the creator.  Patents cover inventions like the lightbulb, specialized manufacturing equipment, and medical drug recipes.

Each of the four major categories of intellectual property rights fails to protect Native American tribal names for a different reason, leaving them unprotected in the public domain for general use or misuse.  Trade secret law fails to protect tribal culture and names because tribes do not attempt to keep these things secret.  Sacred objects are widely known throughout the tribe and sometimes publicly displayed as part of their ritual usage.  Patent similarly provides no obvious protection for tribal names and culture because they are not new scientific inventions or technological advancements.  Although some tribes have had success with registering their names as a trademark, registration requires that a name or cultural object be used in commerce and that the word not be a generic term.  These requirements can quickly invalidate tribal names since many tribes do not commercialize their names or culture, nor do they want to do so, and tribal words have been appropriated by white companies for years which puts them in danger of being labeled generic.  Some tribal symbols have even been incorporated into state flags and are therefore specifically invalidated from being trademarked.  Copyright protections also frequently fail to protect tribal names and cultural symbols.  Copyright is generally reserved for expressive works, not individual works or short phrases, which prevents tribes from copyrighting their names.  Similarly, because copyright focuses on providing exclusivity to a creator, tribes are not able to identify a single person or small group of persons who whom they could attribute the name or cultural concept.  Finally, copyright is time restricted, usually applying only to the life of the author plus 70 years, which would leave tribal names and traditional symbols open to misappropriation again relatively quickly.  The right of publicity is also considered an intellectual property right which allows people to control their name and image, but this right is generally reserved only for individual identities and not for group identities, which generally fall under trademark law.

Congress recognized this lack of protection for tribal culture in 1990 with the passage of the Indian Arts and Crafts Act.  This bill makes it illegal for individuals and companies to sell or offer to sell any art or craft in a way which wrongly suggests that it was produced by an Indian tribe or craftsman.  For example, jewelry marketed as “Indian” or “Navajo” jewelry would violate the Act if it were not produced by a member of an Indian tribe or a member of the Navajo Nation specifically.  Although this Act does protect commercialization of tribal craftsmanship and tangible goods, it does not prevent companies from appropriating tribal names for use on wholly unrelated goods or from appropriating tribal designs in their products.

In order to better protect tribal culture and names, Congress and state legislatures should act to specifically extend the right of publicity to tribal governments and to give tribes the right to control commercial exploitation of their names.  The right of publicity is generally governed by state statute or case law.  States should explicitly amend their statutes to extend the right of publicity to tribes, giving them control over public representations of their culture.  However, this would likely only protect accurate representations of tribal culture and would not protect tribes from being associated with mischaracterizations or stereotypes.  Similarly, Congress should pass legislation allowing for tribes to protect their names and cultural symbols through trademark law despite their lack of usage in commerce.  Giving tribes control over the commercial exploitation of their names and cultural symbols would not only allow tribes to ensure that their culture is treated with respect, but would also open up a much needed economic opportunity for tribes.

For now, tribes lack any legal recourse to stop Jeep from marketing the Cherokee or Urban Outfitters from using traditional Navajo patterns on their underwear.  Hopefully, the attention brought to racist and stereotypical names, slogans, and symbols over the summer will push companies to ask for tribal permission before using their names on products.  However, Congressional and state legislative action is needed to ensure that tribes have full control over their identities regardless of whether or not corporations are willing to change.

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