Who Owns Culture?: Appropriation and Authenticity in American Law

222 Pages·2005·1.37 MB·English

by  Susan Scafidi

Who Owns Culture?
Rutgers Series on the Public Life of the Arts
A series edited by
Ruth Ann Stewart
Margaret J.Wyszomirski
Joni M.Cherbo
Joni M.Cherbo and Margaret J.Wyszomirski,eds.,
The Public Life of the Arts in America
Jan Cohen-Cruz,Local Acts:Community-Based Performance
in the United States
Lawrence Rothfield,ed.,Unsettling “Sensation”:
Arts-Policy Lessons from the Brooklyn Museum of Art Controversy
Susan Scafidi,Who Owns Culture? Appropriation and
Authenticity in American Law
Who Owns Culture?
\
Appropriation and
Authenticity in
American Law
Susan Scafidi
Rutgers University Press
New Brunswick,New Jersey,and London
Library of Congress Cataloging-in-Publication Data
Scafidi,Susan,1968–
Who owns culture?:appropriation and authenticity in American law /
Susan Scafidi.
p. cm.— (Rutgers series on the public life of the arts)
Includes bibliographical references and index.
ISBN 0-8135-3605-7 (hardcover :alk.paper) — ISBN 0-8135-3606-5
(pbk.:alk.paper)
1. Intellectual property—United States. 2. Material culture—United
States. 3. Folklore—United States. 4. Culture and law. 5. Indigenous
peoples—Legal status,laws,etc.—United States. I. Title. II. Series.
KF2979.S28 2005
346.7304(cid:1)8—dc22 2004021381
A British Cataloging-in-Publication record is available
for this book from the British Library.
Copyright © 2005 by Susan Scafidi
All rights reserved
No part of this book may be reproduced or utilized in any form or by any
means,electronic or mechanical,or by any information storage and retrieval
system,without written permission from the publisher.Please contact Rutgers
University Press, 100 Joyce Kilmer Avenue, Piscataway, NJ 08854–8099.The
only exception to this prohibition is “fair use”as defined by U.S.copyright law.
Manufactured in the United States of America
For Jeff

Contents
Preface and Acknowledgments ix
Introduction 1
1 The Commodification of Culture 5
2 Ownership of Intangible Property 13
3 Cultural Products as Accidental Property 23
4 Categorizing Cultural Products 38
5 Claiming Community Ownership
via Authenticity 52
6 Family Feuds 67
7 Outsider Appropriation 90
8 Misappropriation and the Destruction
of Value(s) 103
9 Permissive Appropriation 115
10 Reverse Appropriation of Intellectual
Properties and Celebrity Personae 126
11 The Civic Role of Cultural Products 135
12 An Emerging Legal Framework 147
Appendix:Defining Property 159
Notes 163
Index 189
vii

Preface and Acknowledgments
In writing Who Owns Culture?, I have found that questioning the
ownership and authenticity of “cultural products”—whether cuisine,
dress, music, dance, folklore, handicrafts, images, healing arts, rituals,
performances, natural resources, or language—seems guaranteed to
produce the sort of mild indignation often caused by the discussion of
politics over a holiday dinner.One outraged soul will demand imme-
diate justification:“Hold on! Why exactly doesn’t the legal system
protect our community against cultural appropriation? We’ve given a
lot to this country,and we deserve to benefit from our contributions.”
At the other end of the table,someone is certain to interrupt:“Wait a
second—it’s the mix of cultures that makes America great! Are you
telling me I can’t borrow from other groups?”(In this vein,one of my
more fashion-conscious students was overheard telling classmates in a
horrified whisper,“I’ve read one of Professor Scafidi’s articles.I don’t
think she believes in accessorizing!”) From the family intellectual
provocateur may come a semi-historical factoid such as,“You know,
Marco Polo really brought spaghetti from China,”a remark likely to
spark debate over which aunt or uncle makes the best old-style
tomato sauce to accompany the pasta—cooked al dente, of course.
The practical peacemaker at the dinner table,level-headed and eager
to move on to dessert,will remind everyone that culture is fluid and
evolving, and, in any case, it would be quite difficult to establish
restrictive forms of ownership or to police cultural borrowing of
everyday art forms.And so back to the particular fish or fowl,sweets
or savories,and especially family recipes that mark a particular cultural
occasion.Whether they are called objects of cultural elaboration,tra-
ditional knowledge, folklore, cultural heritage, or intangible cultural
ix