Traditional Tribal Dance... Now Covered By Intellectual Property

from the don't-dance-it! dept

Remember a few years back when the "inventor" of the electric slide claimed to own the intellectual property on the dance and sent takedown notices to those who were using it without paying up? Well, let's take that even further. A whole bunch of folks have been sending in the story that the New Zealand government has agreed to give intellectual property rights on an ancient tribal dance back to that tribal group. The group says they're trying to defend the dance from being exploited commercially, which "undermines" the "significance" of the dance.

I can certainly understand why they might be upset from a traditional angle, but it seems fairly ridiculous that you can tell people how they can and cannot dance. And, in fact, my guess is that eventually this tribal group will regret this decision. If you cannot easily spread and share an ancient culture, you are pretty much guaranteeing that it will die out.


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    Petréa Mitchell, Feb 12th, 2009 @ 2:02pm

    Cultural issues

    "I can certainly understand why they might be upset from a traditional angle, but it seems fairly ridiculous that you can tell people how they can and cannot dance."

    The whole point is that the dance comes from a culture where it is not at all ridiculous to tell people how they can and cannot dance. And the example of "misuse" given-- the Italian commercial-- is, in essence, blasphemy within that cultural context.

    I am not arguing that the IP move is necessarily the correct thing to do here, but this is a situation that warrants more than knee-jerk disdain.

     

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      Ima Fish, Feb 12th, 2009 @ 2:35pm

      Re: Cultural issues

      "The whole point is that the dance comes from a culture where it is not at all ridiculous to tell people how they can and cannot dance."

      So culture gets to pick their own rules?! And if a culture believes human sacrifice is ok, we all have to make a law to justify it?

       

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        Petréa Mitchell, Feb 12th, 2009 @ 3:39pm

        Re: Re: Cultural issues

        "So culture gets to pick their own rules?!"

        This blog has, IIRC, argued that property is an artificial construction brought into existence by laws. Given that, what's your argument for using your artificial construction vs. theirs?

        "And if a culture believes human sacrifice is ok, we all have to make a law to justify it?"

        How do you figure that sorting out IP issues leads to human sacrifice?

         

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      mike42 (profile), Feb 12th, 2009 @ 3:12pm

      Re: Cultural issues

      And the example of "misuse" given-- the Italian commercial-- is, in essence, blasphemy within that cultural context.
      So much for the Church of Satan and Darwin fishes. Blasphemy is now punishable by IP lockout in perpetuity. A very sad time to be a Pastafarian.

       

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    Matt Huertas, Feb 12th, 2009 @ 2:02pm

    Haka

    This is different than the 'invention' of the electric slide because the Haka has been widely known to have originated from the Maori many many years ago.

    Also in this case the dance does hold a lot of significance to the people because it's traditionally a tribal dance reserved for warriors before they go into battle [that version is the War haka] in order to intimidate their opponents. That haka has been adopted by the New Zeland All Black's and that's how a lot of the world knows it.

    Reading the article the Maori mostly want to prevent companies from trying to use it in shitty commercials that don't even do the dance properly.

     

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      Anonymous Coward, Feb 12th, 2009 @ 2:55pm

      Re: Haka

      "Reading the article the Maori mostly want to prevent companies from trying to use it in shitty commercials that don't even do the dance properly." That doesn't make sense. If the Maori had the IP, the ONLY way companies could do it (without paying) would be improperly.

       

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    Jesse, Feb 12th, 2009 @ 2:19pm

    Isn't that also pretty much killing the whole part of granting "temporary" monopolies? Seriously, WTF.

     

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    eleete, Feb 12th, 2009 @ 2:26pm

    The next step in this dance.

    Watch out for your polluticians promoting the fact that this dance CANNOT be performed on video or shot in still photos because it is protected by copyright on an ANCIENT arrangement of movements. If it is ANCIENT, why is it not public domain ? Will the U.S. respect that ? If the U.S. does not respect that, will that lead to a collapse in IP treaties between nations ? Cool if it does, bad if it means Ancient works are STILL protected by IP laws. Lobbyists ? Polluticians ? Please take note of the issues.

     

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    Slackr, Feb 12th, 2009 @ 2:57pm

    I agree this is likely to come back to bite someone, regardless of how many protest that it won't (Maori and current Prime Minister included). Should it become a contentious legal issue it will only further harm relationships between Pakeha (Europeans) and Maori in this country regardless of how 'right' or 'legal' the cases are.

    For those who are interested, this concerns only 1 haka (the most famous due to its association with the National Rugby Team, the All Blacks). However in recent times the All Blacks have also been using an alternative haka, but the Ka Mate haka is most commonly known and performed at times of significance both sporting and socially.

    If I were going to sue anyone to restrict or enforce my rights, I'd start with the early footage of the first performances of the haka by the All Blacks. Hardly the fiercesome war challenge we see today.

     

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    bigpicture, Feb 12th, 2009 @ 2:58pm

    Cultural blasphemy within that cultural context

    There used to be human sacrifice as part of a cultural context. Did it die out (no pun intended) because of IP issues, or was it because of participant disdain? So can we still do the dance if we don't wear the costumes?

     

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    lavi d (profile), Feb 12th, 2009 @ 3:14pm

    Hakarena

    I suggest we all learn the dance and then perform it on stage together at the next TechDirt shindig.

     

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    trollificus, Feb 12th, 2009 @ 4:35pm

    Not to be cynical...

    ...but I'd give odds that this is a lot more about extracting fees from the All Blacks team for performing the dance than anything else.

    Just sayin'...

     

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    Michael Rutledge, Feb 12th, 2009 @ 6:40pm

    Tribal Dance

    You are correct in that tribal cultural and religious symbols and practices don't fit neatly into the trademark concept. The Maori have been trying since 1998 to secure trademark registration and protection of their dance to prevent misappropriation and commercial use by businesses.

    The issue here, however, is one of cultural property. Cultural property protections are not a direct analogue to intellectual property and is the gist of your concern. The goal of cultural property is never to turn something over to the public domain as in copyright or patent law, but to protect it from misappropriation by the larger culture in perpetuity.

    But then you should recall that trademarks are protected indefinitely and not turned over to the public domain because the goal of trademark law is consumer protection and protection of a business' good will.

    That is why trademark law is the easiest concept to use to protect cultural property. In the case of New Zealand, it required a new agreement. In the U.S., the equal enforcement of the Lanham Acts existing provisions didn't require new legislation.

    You have to recall that this is a separate culture with its own concepts of property and the rights to them. Most cultural property is closely tied to native religions and have deep, religious meaning that is harmed by unauthorized use, especially those outside the culture.

    No one within the tribe can transfer the cultural property because the culture itself 'owns' the property. Legally, no one person or group of persons has standing to do it. Even the religious leaders don't have standing. It is a right that cannot be divested by the tribal members. These practices and symbols are the culture and the religion.

    Thus the point of the Maori protecting its dance is because it wants to protect its religion and culture. The Maori have a right to state the terms of the use or non-use of its property, not New Zealand nor other outside cultures.

    New Zealand, along with Australia, Canada and the U.S. were engaged in cultural destruction not very long ago. In all four countries, native children were forcibly removed from their families and sent to boarding schools where their cultures were literally beaten out of them.

    In the U.S. the official policy was to "kill the Indian, save the child" as the boarding schools sought to wipe out tribal languages and cultures in entire generations. It continued up to the late 1970s.

    Indigenous cultures and religions hung on by a thread for over a century. Our cultures are still recovering from the attempts to destroy us.

    In the case of New Zealand and Australia, they would remove many of the native children from their families permanently, never letting the parents see their children again. Again, this continued well into the latter part of the 20th Century.

    How would you feel if the government came into your home, forcibly removed your children and brainwashed your children to not believe in the things you felt were important, your religion and your culture?

    Wouldn't you want to protect your religion and culture so you could bring your children back and deprogram them?

    A good example of how something seemingly innocuous is deeply offensive and harmful to a culture is the prohibition of cutting one's long hair among traditional American Indians. Setting aside the religious and cultural prohibitions, it is a deeply racist thing to force an American Indian to cut his or her hair. To you, it is just hair, but to us, it is our culture and religion being attacked.

    The boarding schools took pictures of American Indian children coming in with their native clothes and long hair. Then, after shaving their heads and putting them in American clothes, another picture was taken. These pictures were used by the government as propaganda for its cultural genocide.

    It was and remains a blatant racist act to us, similar to burning crosses on an African American's lawn, only with a deeply offensive religious twist. It has risen to the level of a new form of cultural property.

    Tribes in the US and Canada continue to struggle to protect and rebuild their cultures, as do the Maori and Indigenous Australians. Vital to that effort is cultural property laws to protect sacred symbols and cultural practices from being misappropriated by the larger culture.

    In the U.S., trademark law protects Christians from seeing "Jesus Christ Wine" on their store shelves. But up until 1994, Native Americans were not federally protected against having their religious symbols misappropriated by companies who wished to steal the symbols and use them as their own registered trademarks. By registering the marks, the companies could legally deny use to the tribe itself. Despite the clear language in the Lanham Act against registration and protection of religiously based marks, it took education of the Patent and Trademark Office before the Office understood that it should have been protecting them all along.

    At root of the problem is the dominant culture has integrated racism against tribal peoples and their cultures to the extent that it fails to recognize it as racism (i.e. the 'redskins' racial epithet integrated racism into a protected trademark, despite the Lanham Act's clear prohibitions on racist marks - the court cases showed the extent to which the dominant culture would go to excuse its continued racist behavior).

    Instead of railing at something denied you under the public domain doctrine, a Western legal concept, perhaps you can think of it as one small step toward preserving the culture so your grandchildren can hear from the Maori, themselves, as they tell them who they are and how they live. That is the right of the Maori to do.

    The alternative is destroying the culture by stealing the last property the culture claims as its own. Haven't we evolved into better people than to do a thing like that?

     

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      Lawrence D'Oliveiro, Feb 12th, 2009 @ 8:13pm

      Re: Tribal Dance

      Michael Rutledge wrote:

      The goal of cultural property is ... to protect it from misappropriation by the larger culture in perpetuity.

      If that’s true, then Mäori culture is doomed, and it’s being killed by the very people trying to “protect” it.

      Because that is how cultures spread and thrive: by being adapted and “misappropriated” by others.

      Consider the English language: should its original Anglo-Saxon creators have “protected” it from “misappropriation” by others? Look at how peoples of other cultures and living in other lands speak it: they use different words, they use the same words in different ways, they change the spelling, they mess about with the grammar rules—and of course businesses use it commercially to make money.

      If the peoples of the world had been prevented from doing these things with the English language, then they’d be doing it with some other language by now. And that other language would be growing and thriving and spreading all over the world, while “English” was some quaint oddity, confined to some cultural backwater of the world.

      Stop people from misusing the English language, and the English language will die.

      Stop people from using the haka, and the haka will die.

       

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        Lonnie E. Holder, Feb 12th, 2009 @ 8:48pm

        Re: Re: Tribal Dance

        Lawrence:

        You are right, and wrong. Yes, you are correct that the Maori (and, by extension, any other culture that attempts to prevent "misappropriation," if that is the correct characterization, of their cultural traditions) are uninterested in "spreading and thriving." In fact, many cultures are not only uninterested in "spreading and thriving" by YOUR definition, but have killed (and perhaps in some cases eaten?) non-members of their culture for attempting to emulate certain cultural traditions.

        If you look at it from the viewpoint of an indigenous culture, it may make sense. Indigenous cultures, including some in the "west" (the Masons, for example), have certain traditions, which may include dances, songs, poems, chants, music, etc., that have a deeply religious meaning to them. For an outsider to attempt to emulate them, or worse, make a parody of them or to use them in ways that the indigenous people might consider to be sacrilegious, could be deeply offensive. In former times, such acts might well get the offender killed.

        Yes, stopping people from using the haka may well cause the haka to die out if the Maoris die out, but at least inconsiderate foreigners will not be using the haka in night clubs, pornographic movies, and to sell beer during soccer games. Do you really want to piss off a Maori warrior? Maori warriors have been considered among the most fierce warriors in history.

         

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        Michael Rutledge, Feb 13th, 2009 @ 4:47pm

        Tribal Dance

        Lawrence D'oliveiro wrote: "Stop people from using the haka, and the haka will die."

        Not within the Maori culture, so long as it survives. In the dominant culture, yes. that is not a bad outcome in the eyes of the Maori or any tribal group trying to keep its culture from being exploited.

        Your point is misguided because you equate language with culture. Language is a subset of culture. Religion, which is the part that concerns the tribal dance at issue, is another subset of the culture. Religion doesn't change with the fluidity of language nor at the same speed. Religion usually requires that the religious traditions NOT change.

        At the end of the day, as shocking as it may be, it is not the dominant culture's right to pillage and plunder the tribal cultures. No matter how nobel you make it sound to you, to think so would be a continuation of the racist colonialism that brought us to this juncture.

         

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      Erin, Mar 12th, 2009 @ 2:58pm

      Re: Tribal Dance

      Thanks for posting this remark. I feel that non-tribal people would understand why this is so important if they had all the facts. It has only been 30 years in the U.S. since tribes had the right to practice their own religion -- We need to see the true end of colonial assimilation by ensuring tribal peoples cultural preservation rights.

       

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      SNYC, Jan 25th, 2014 @ 6:18pm

      Re: Tribal Dance

      Thank you for posting this up. Among of one the most informed and clear comments so far.

      I think the concept of RESPECT is important between cultures, we just really should respect one another. And sadly often the dominant culture just doesn't have it and when confronted make all sorts of excuses instead of remediating and correcting the action.

      Just found this article through research...dealing now with some dance groups that insists on wearing our traditional native clothes, along with some chicken feathers stuck on their head, dancing around and supposedly claiming they are 'preserving cultural traditions'. Of course if money & grants weren't involved they probably wouldn't be anywhere seen 'preserving' anything. They were asked to stop, did they? nope. No respect.

       

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    Anonymous Coward, Feb 12th, 2009 @ 8:46pm

    Oh Noes !

    Does this mean that I can not longer do the Watusi ?

     

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    SunKing, Feb 13th, 2009 @ 3:44am

    Stop it now.

    This is complete bullshit... but the fact that it's being seriously entertained and discussed here is even bigger bullshit.

     

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    kevjohn, Feb 13th, 2009 @ 7:12am

    Hey, we can dance if we want to. And we can leave your friends behind. Because your friends don't dance and if they don't dance well they're no friends of mine. We can dance.

    But maybe we shouldn't do the Maori dance.

     

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    by Linda, Mar 13th, 2009 @ 7:51am

    re: tribal dance

    Regarding religious depiction of religious rites and practices:
    The Amish in the United States are a minority group which has been depicted on TV, motion picutures, and even a "reality show."
    Their rights ought to be protected also, but no one respects them. Is this because they are a white minority?
    Religious practices are "out there"; no one is attempting to destroy anything. CULTURE (including symbols and rituals) cannot be copyrighted by the laws of the US copyright office!

     

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