Intellectual Property Protection For Alaska Native Arts
In many Fourth World contexts, commercial art production, stimulated by global tourism, is one way people have adapted to the economic pressures of a cash economy and the disruption of subsistence lifestyles. Art production's economic importance to indigenous people in the United States has increased over the past decade along with unemployment rates, generating over a billion dollars in gross revenues by 1997 and providing the primary or secondary source of income for a large percentage of families. In Alaska, where many of the state's 100,000 indigenous people rely on mixed cash and subsistence economies, locally produced arts are important supplements to income and one of the few sources of cash not associated with government jobs or payments. Taking artwork to town is almost as good as money in the pocket. But arts and crafts are more than just an economic safety net; they are, as one carver described, a cultural gift and a source of self-esteem and status within the Native community.
In Alaska's rural villages, people use the time available between subsistence activities like hunting, fishing or gathering greens and berries to make art, and the raw materials they utilize are often byproducts of these subsistence harvests. An artist might raise her prices when the cost of fuel oil rises, or ask a price that covers an immediate household need. Prices also reflect invisible parts of the production process like the time and resources involved in the harvest and preparation of indigenous materials, whether spruce root for baskets or walrus ivory for carvings.
Since the 1930s, government agencies in Alaska have been heavily involved in promoting the commercialization of indigenous arts, not so much for the benefit of Alaska's Native peoples as to satisfy the appetite of the state's fastest growing industry -- tourism. Studies indicate that today's tourists are seeking more Native cultural experiences, and arts and crafts are high on their list of purchases.
Problems with Misrepresentation
About half of the 80 million dollars in retail purchases made by tourists in Alaska each year are presented as Native arts and crafts, but the Alaska Department of Commerce and Economic Development estimates that 75-80% of what is displayed as Native work is not made by Alaska Natives at all. Shops are full of imported and imitation Native-style art with labels approaching misrepresentation and consumer fraud. ""Authentic"" can refer to something executed in a Native style rather than Native-made, a replica of an older cultural object (like a mask or totem pole figure), or an ""authentic reproduction"" of a design whose copyright was purchased from an indigenous artist for commercial use on manufactured goods like t-shirts, mugs, or greeting cards.
These problems with misrepresentation are certainly not new, nor are they specific to Alaska. They exist because while work with an ethnic or cultural affiliation brings significantly higher prices, mass-produced or imported Native-style work can be sold for one-half to one-fifth the price of Native-made counterparts. Many dealers and retailers claim that Native artists set prices too high or don't produce enough work on a consistent basis to supply tourist demand. Perhaps the real problem is that the work of indigenous Alaskans has been expected to compete with mass-produced, low-cost souvenir goods.
Indigenous Materials on the Global Market
Alaska's Native artists today find themselves enmeshed in a web of state, federal and international laws concerning migratory birds, marine mammals, or other endangered species -- a web which creates barriers to trade in works made with indigenous materials. A fluff of polar bear fur on a hairpiece or the use of whale baleen or walrus ivory makes an item illegal to import into many countries without a CITES (Convention on International Trade in Endangered Species) permit. Alaska Natives have also experienced the impact of international bans on elephant ivory, furs, and sealskin on the market for their own products and are well aware that global attitudes can affect their future access to subsistence harvests. In the words of Alaska Native artist Jim Schoppert (1947 -1992), ""Just about everything we use is either protected, endangered, soon to be extinct or illegal….[W]e are a people stymied from practicing art traditions developed over centuries because of the enactment of concern by others far removed from our ancestral ways.""
In the United States, the Marine Mammal Protection Act (MMPA) permits only Alaska Natives to harvest marine mammals for their own subsistence use and allows them to use the byproducts (fur, bone, ivory, baleen) to create arts and crafts. Some manufacturers employ Alaska Natives as low-paid pieceworkers to mass-produce ivory jewelry, taking advantage of their Native status in order to circumvent MMPA restrictions and to market products as ""authentic"" Native goods. And since marine mammal byproducts harvested before the 1972 passage of the Act can be purchased and worked by non-Natives, selling ""pre-Act"" walrus ivory and whale and walrus bone to dealers has become a substantial source of income in some villages. Art made by non-Natives from these indigenous materials often imitates Native motifs or is marketed using romanticized appeals to Native culture. Labels on jewelry made from pre-Act ivory appeal to animal rights sympathies, using statements like ""no animals were killed to make this piece"" to undercut indigenous producers. Dealers export several tons of old ivory and bone each year to carving workshops in Indonesia where skilled artisans are paid about five dollars a day to copy Native designs which then return to Alaska to be sold. It distresses many Indigenous Alaskans that they supply the materials others use to make Native-style imitations and fraudulent art.
The Silver Hand
Since 1972, the Silver Hand emblem has been used to identify arts and crafts produced by Alaska Natives. The emblem provides a ""guarantee of authenticity"" -- that the article is ""made in Alaska, handcrafted and finished by an Alaska Native artist or craftsman."" Any Alaska Native of 1/4 or more Native blood can register for the state-sponsored program. The Silver Hand is not a mark of quality however, and the authenticity it marks is actually ethnicity as defined by blood quantum.
Many retailers are wary of the Silver Hand, fearing that shoppers might regard everything sold without it as inauthentic. Retailers prefer to blur distinctions between Native and non-Native work since having some Native-made work on display helps to sell similar but less expensive items. Native artists also worry that tourists will wrongly assume that anything without a Silver Hand isn't Native-made, and everyone complains about the few people who abuse the program by sharing tags with unregistered friends or non-Native spouses. Others feel that labeling their work as ""Native"" limits how it will be perceived within the wider art community. The narrow definition of ""authentic"" discourages indigenous artists who use non-traditional materials or contemporary designs. And using blood quantum to establish criteria for authenticity is little more than a form of institutionalized racism.
In spite of these criticisms, the Silver Hand is considered one of the best Native arts authentication programs in use in the United States. The original intent of the 1961 statute that authorized the trademark was the State of Alaska's desire to minimize the economic impact of Native-style imports that began to flood the tourist market after World War II. Since then, the program's intent has expanded to include protecting consumers and Alaska Native artists. Does the Silver Hand accomplish this? If a consumer understands its meaning, the Silver Hand can protect both buyer and artist from works of questionable origin, and the more widespread its use, the more protection it provides. In 1995, 334 Alaska Natives were registered Silver Hand artisans; by 1999 there were 925.
Protecting Intellectual Property Rights of Indigenous Artists
Several avenues exist for increasing protection of intellectual property rights of indigenous artists. As tangible objects that enter a commercial market, arts and crafts are somewhat more compatible with existing legal frameworks of copyright, trademarks, rights to designs, and protection against misrepresentation and unfair competition than are many other forms of intellectual property. Existing laws and institutions, in spite of their limitations, can sometimes be creatively applied, extended, or subverted to meet indigenous objectives. In December, 1998, for example, endangered species regulations were invoked to remove feathered Pomo Indian baskets from a Sotheby's auction; at the same auction, wealthy buyers purchased several items for the sole purpose of returning them to Native groups.
Strengthening Existing Legislation
Anchorage lawyer Thomas Van Flein advocates strengthening state legislation regarding unfair trade practices and mislabeling by passing a law specific to indigenous arts and crafts. Such a law would place more penalties where they belong -- on the distributors and retailers of fraudulent goods. Unfortunately, similar actions, including recent legislative attempts to strengthen the Silver Hand program, have historically met with strong opposition from Alaskan retailers.
Another way to protect indigenous arts would be to regulate competition from imports. In 1967, for example, Panama made it illegal to import goods that compete with locally produced handicrafts. In 1984, Panama passed additional laws specifically prohibiting the import of articles with designs based on molas, the unique textile art produced locally by Kuna women. (See Stephen Snow's article in this issue.) These laws were never well enforced, however, and tourists could find mola designs on imported souvenirs and plastic bags. Because of the privileged position of free trade in the United States, it would be unlikely to see U.S. federal laws restricting imports, but New Mexico has enacted comparable legislation to protect New Mexican artisans. On a micro-level, socially responsible businesses and alternative trade organizations can restrict imports just as several retailers in Alaska do -- by choosing to sell only merchandise made by indigenous Alaskans.
Current copyright law is inadequate in protecting indigenous cultural property or art held collectively or in perpetuity, but it does protect an artist's original designs. Artists need to know that they can demand a certain form and quality if they decide to sell copyrights. Pursuing copyright infringement is both costly and time-consuming, but one way around this impediment is to form copyright collectives that promote the concerns of artists as a group. In Australia, the sale of unauthorized reproductions on T-shirts effectively ceased after Aboriginal artists began, in 1989, to initiate copyright proceedings against manufacturers and sellers of pirated designs.
Older ethnographic works of art, including those held by museums, are generally assumed to exist in the public domain, unprotected by copyright. When a contemporary artist makes a replica of an ethnographic object, she acquires the copyright over any new or added features and over the specific form of the replica. Indigenous artists can ""take back"" copyright by remaking older designs in new forms. Some indigenous groups have considered the idea of making replicas of artifacts returned to them through the Native American Grave Protection and Repatriation Act in order to sell these reproductions back to museums.
Trademarks don't protect designs; they indicate the origin or source of goods or services. Trademarks also generate symbolic power by marking identity and authenticity. According to anthropologist and IPR expert Darrell Posey, trademarks or certificates of origin may be the most useful mechanisms currently available to protect the intellectual property rights of products coming from indigenous lands or produced by indigenous peoples. In 1971, the Alaska Native Claims Settlement Act enrolled all indigenous Alaskans in regional and village Native corporations that were granted land and money in return for extinguishing aboriginal land claims. These indigenous corporate entities have the ability to issue trademarks to authenticate and identify products from their lands. The legal standing of Native corporations can be invoked to protect intellectual property rights and could yield additional benefits, like pursuing collective copyright litigation or marking indigenous identity.
Alternative Trade Organizations
Indigenous-owned and managed arts and crafts cooperatives the world over now provide positive examples of alternative production and marketing strategies. One Alaskan example is the Chukchi Sea Trading Company which earmarks a percentage of its profits for local scholarships as it conducts business on the Internet from the small Native Village of Point Hope. The internet solves some of the problems of marketing from a remote location and allows flexibility in supply and demand since even one-of-a-kind pieces can be placed on a web site. Another project is the indigenous-to-indigenous joint venture between the Inuit Circumpolar Conference and the Belize Indigenous Training Institute that helps develop and market local arts and other products. The potential for alternative trade organizations to serve the interests of indigenous artists and their communities is only beginning to be tapped.
Sovereignty and Subsistence
Issues affecting Alaska Native arts and artists are entwined with ongoing struggles for sovereignty, social and economic stability, and cultural integrity. Alaska Natives readily recognize the close relationship between making art and social issues in their communities; some of the most successful village-based arts workshops have received their funding as suicide prevention or substance abuse projects. Alaska Natives today are embroiled in intense political debates concerning their subsistence hunting rights as respect for contemporary indigenous lifestyles seems to erode before the demands of non-Native hunters, regulatory agencies, and developers (also see CSQ 22:3, Fall 1998).
Global Dilemmas/Local Decisions
Concern about intellectual property rights also connects Alaska Native artists and their communities with the shared struggles of indigenous peoples on a global level. But for now, international-level attempts to reframe definitions of indigenous rights, though extremely important in pushing the agenda, may be less likely to protect intellectual and cultural property rights than practical policies worked out by indigenous peoples at local levels. The World Customs Organization, for instance, has advised that international policies for protecting handcrafts are unlikely to develop until local and national precedents exist.
But what will it mean to protect the integrity of a tradition or assign the rights to a particular design communally to a cultural group? New interpretations must find ways to incorporate the dynamic, inventive and unbounded aspects of traditions and cultures into definitions of these rights. Solutions that limit access to the public domain are wrought with dilemmas about where to draw the limits. Communal ownership of designs raises many questions about the boundaries between groups: Which designs? Owned by whom? Who decides? To whom and under what conditions will use be granted?
A woodcarver in Bali copies designs from a book to make Northwest Coast-style masks for an importer who sells them at a substantial profit in his Anchorage gift shop; a non-Native artist living in Seattle crafts miniature replicas in metallic jewelry of 100-year-old Yup'ik Eskimo masks that now reside only in museums and private collections; an Alaska Native artisan of Athabascan (non-Yup'ik) descent has found a successful niche carving and selling miniature Yup'ik masks based on illustrations of museum pieces: what is an appropriate response to these real situations? Are these artisans tapping the public domain to enrich us all, or are they ripping off the intellectual property of a cultural group that should control or be compensated for its use? In the final analysis, solutions to indigenous intellectual property dilemmas like these require grassroots involvement and decision-making by indigenous peoples or they signal just another form of appropriation.
This work has received support from: the Jacobs Research Fund of the Whatcom Museum, the Arctic Institute of North America, the Arctic Social Sciences Program of the National Science Foundation, Indiana University's Research and University Graduate School, and the David C. Skomp Fund of Indiana University's Department of Anthropology. Thanks also to the artists, shop owners, and others who shared ideas and advice, especially the people of St. Lawrence Island.
Julie Hollowell-Zimmer is a Ph.D. candidate in anthropology at Indiana University researching archaeology and the art market in Alaska's Bering Strait. Her interests include global marketing of cultural property and the repatriation of knowledge, materials, and research directives to indigenous communities.
References and further reading
Belk, R. W. & Groves, R. (1999). Marketing and the Multiple Meanings of Australian Aboriginal Art. Journal of Macromarketing 19.1, pp 20-34.
Golvan, C. (1992). Aboriginal Art and the Protection of Indigenous Cultural Rights. European Intellectual Property Review 14, pp 227-232.
Marcus, G.E. & Myers, F. R. (1995). The Traffic in Culture: Reconfiguring Art and Anthropology. Berkeley: University of California Press.
Phillips, R.B. & Steiner, C. B. (1999). Unpacking Culture: Art and Commodity in Colonial and Postcolonial Worlds. Berkeley: University of California.
Posey, D.A. (1996). Protecting Indigenous Peoples' Rights to Biodiversity. Environment 38:8, pp 6-17.
Ray, D.J. (1977). Eskimo Art: Tradition and Innovation in North Alaska. Seattle: University of Washington Press.
Scott, M. (1997). Faking It: The Appropriation of a Culture. Inuit Art Quarterly 12:2, pp 18-22.
Ziff, B. & Rao, P., eds. (1997). Borrowed Power: Essays on Cultural Appropriation. New Brunswick, NJ: Rutgers University Press.
Note: ""Alaska Native"" is at present the most commonly used term for self-reference by indigenous peoples of Alaska. I am partial to the definition of ""Native"" as a person ""originating from a particular place"" as distinguished from ""visitors or invaders"" (American Heritage Dictionary).
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