The Legal Protection of Traditional American Indian Music
© James D. Nason
Professor Emeritus, Department of Anthropology
Curator Emeritus of Pacific and American Ethnology, Burke Museum
University of Washington
8 May 2005
Invited Address for the First Nations Composers Forum, St. Paul, MN
Not for citation or quotation without the express written permission of the author.
The Legal Protection of Traditional American Indian Music
James D. Nason
8 May 2005
Thank you very much for the invitation to discuss some of the issues in the legal protection of traditional American Indian music. Let me start by saying that I am not a lawyer, and my acquaintanceship with this issue stems from my research and teaching courses at the University of Washington in cultural property law
My interest in this subject began in the early 1970s after we created the American Indian Studies Center at the University of Washington, which I had the privilege of directing. I began to get calls from people in local tribal communities asking if I could help them trace the whereabouts of recordings of songs and oral accounts done by their elders for visiting researchers. No caller knew the name of the researcher, where the researcher had been from (state, university, city), and certainly no one had anything like a written agreement or other document from the researcher saying what they would do with the recordings. Some of these recordings had apparently been made in the 1940s and 1950s.
I thought at the time that I probably couldn’t be of much use, since the search for these recordings would be hit and miss - usually through reviews of publications, using only a source tribe name for the search. But it was worth the effort since these were often the only records of songs and other things that the family had of that now-deceased elder, and in some cases the only records of those particular songs which were now lost to the family and community. My grandfather was apparently a good singer at the gatherings our tribe held in the Wichita Mountains in Oklahoma, but since he had died before I was born I never heard him - and no one I knew had any recordings of him singing, but how I would love to have access to such recordings.
Despite various efforts and numerous calls to colleagues, in not one single case were we ever able to find one of these recordings. I was fairly certain that in many cases the researchers had probably been students whose work had never been published, and whose recordings might or might not still be in existence.
Given these unhappy outcomes, I was struck by the fact that tribal communities did not then have any mechanisms that might be used to protect the rights of their members - or of the community itself - when outsiders wished to make recordings. Nor, for that matter, had outside researchers made much any effort to keep in touch, to provide copies, or to do any of those things which ethically seemed so obvious to me at the time as basic responsibilities of someone doing research.
This point was forcefully brought home to me in 1998 when a Flathead elder spoke at a tribal college meeting devoted to this issue, and said that a famous researcher had recorded lots of their songs, but refused to share his tape recordings with the tribe bcause he had promised one woman who had been recorded that he would not release the recordings. The elder went on to muse about the record albums of their songs that had been released, without benefit to the tribe, from these same recordings. He concluded by saying that he had originally thought that Indian people should share with non-Indians, but now he was having second thoughts given the profits made by non-Indians on Indian knowledge, and the lack of respect shown by many of those who received that knowledge.
The other aspect in this issue that I thought was important had to do with the legal status of these recordings. What rights did a researcher acquire when they made such a recording? What rights of ownership and control did the elder retain? Or the tribe? Did it matter if the songs were traditionally individually owned, family owned, or perhaps even community “owned”? Indeed, what was the status of all those records of Native American music and esoteric lore and other information that had been made since the late 1800s? Did individual Indians, or their communities, still have any rights in those recordings?
We are, of course, talking about intellectual property - that subset of property known as personalty - as opposed to realty - that in American law includes such intangible property as copyright, patents, trademarks, and a few other odds and ends. Within this I am most concerned about what may be called “traditional” knowledge, and what I have referred to in earlier publications as “esoteric” knowledge. By this I mean traditional valued knowledge passed from generation to generation within families or communities where it may be owned or used in accord with indigenous ownership laws. This includes new knowledge, songs, etc. that become a part of the recognized system of such knowledge within a community and which will also be passed along through time. Some of these intellectual properties require special training or status for acquisition or use , and some may be held in trust by an individual or a group within a community for the benefit of all in the community. Sacred songs and regalia within a religious society, for example, would be of this type. Finally, the mechanisms of ownership, control, and transmission lie within traditional community laws.
While there is variation across Native North America in how these traditional laws operate and what they define and protect, it is clear that issues of ownership and disposition in songs, music, and other oral literature are recognized in traditional law, with varying means of enforcement. What is much less clear is the status of this same intellectual property when it leaves the community of origin. And this is really the heart of what I intend to discuss today.
By the late 1800s American and European scholars widely believed that Indians were disappearing as a population and thus as recognizable cultures. Population loss was at this time already over 90% and by 1900 many tribal communities had disappeared entirely. As a result, a massive campaign to collect objects, informaion, and even bodies was undertaken across Native North America and this resulted in most of the huge Indian collections that are now in museums large and small. NMAI’s collection is a good case in point, with more than 1.2 million objects being collected within only a few decades by or under the aegis of one individual.
This was “salvage” anthropology at its most ambitious. Mundane and sacred objects, objects from families as well as patrimony belong to the whole community, songs and lore and language data and information on every conceivable topic were all collected. The object of this enterprise was to ensure that a record existed - as one notable of the time put it - of the “vanishing race of red men” for future generations to study. A great deal of this data was published through the annual reports of the national museum or in the bulletins of the Bureau of American Ethnology or in other serial publications dedicated to this material. And, then as later, a huge number of books were also written based on these collections.
During this period the research protocols in existence said nothing about the relationships between the researcher and community. The researcher’s job was to collect data, and this was seen as the overriding good - no matter how the task was performed. Deception, theft, and other means were sometimes used in collecting, just as in other cases true trust and respect marked the research work that was carried out. The data collected and then published became the property of either the institution which had sponsored the research and publication or that of the individual researcher personally. I don’t know of any cases where the community of origin for the collected traditional knowledge reserved or continued to have any rights to that information, although some may exist. In all of these cases, the status of this knowledge as soon as it left the community was determined by Federal laws, not tribal laws.
This began to change somewhat in 1971 with the publication of the “Principles of Professional Responsibility” by the American Anthropological Association, which asserted that:
“an anthropologist’s paramount responibility is to those he studies. When there is a conflict of interest, these individuals must come first. The anthropologist must do everything within his power to protect their physical, social, and psychological welfare and to honor their dignity and privacy. ...Where research involves the acquistion of material and information transferred on the assumption of trust between persons, it is axiomatic that the rights, interests, and sensitivities of those studied must be safeguarded.
...There should be no expoitation of invididual informants for personal gain. Fair return should be given them for all services.”
But, at the same time, the researcher’s responsibility to the discipline was to:
“undertake no secret research or any research whose results cannot be freely derived and publically reported”.
Taken together, these guidelines implied that a researcher shouldn’t acquire data without ensuring that the rights of those in the community, and especially informants, were protected. But this was a matter of personal interpretation by the researcher, just as the prohibition against exploitation simply meant some agreed upon compensation - in those days taken to be a more or less standard fee paid to the informant. It certainly didn’t imply that anyone but the researcher was, in fact, the owner of the data that had been acquired. Indeed, it was presumed to be inevitably true that the researcher did own the data collected - and has been so for centuries in Western science.
This belief about the ownership of research data was in part based on the idea that the goals of science are pure and noble, and its results inevitably for the good, whether the researcher is an anthropologist, an ethnomusicologist, or a chemist. The first constraint on this attitude came with federal guidelines in the early 1970s on human subject rights, which required informed consent by subjects taking part in research activities, including interviews and recordings. But this did not otherwise affect the ownership of any resulting data.
So, even if I had been able to find the recordings that callers wanted me to help them locate, it appeared to me that obtaining copies would not necessarily be possible unless the researcher felt like making copies. Certainly there appeared to be no law in the 1970s to compel them to do so. The status of any recordings seemed fairly clear - any rights of copyright were in the hands of the researcher.
In the absence of any written agreement between a researcher and an informant the data collected is presumed to be owned by the researcher, as the product of their collecting work The creative activity is the research itself, not the presentation of that data. Of course, there were no written agreements like this in earlier years. Did possession of the data not imply agreement and therefore a kind of contractual assent to the recording? After all, unless duress could be shown, how could a recording have been made unless it was with the agreement of the informant? If - as would have been true after the 1970s - an informed consent form was signed, this would simply add to the impression that a voluntary agreement had led to the completion of the recording which was now in the possession of the researcher to be disposed of by that person as they saw fit. And, since these were rarely if ever public performances, there could not be an argument for performance copyright.
Would it matter if someone else in the family or community felt their rights were abridged by that recording? Perhaps, but only within the jurisdictional limits of the tribal community, which would not usually extend to an outside researcher in the absence of some other form of written or provable verbal agreement, contract, or comparable document.
What if the recording was considered to be a part of the patrimonial property of the community as a whole? That is, property which is owned by the community as a whole and which could never be alienated by one person. In this case the tribe would have to not only take action against the person who alienated the property, but also find a mechanism to pursue recovery outside of the tribal community’s jurisdictional limits. As to the first matter, I’ve had a number of tribal chairmen, lawyers, and others say to me that they would never presume to question the motives of an elder who had decided to share what they know with someone else. As to the other issue, what law could be used to seek recovery?
This is a significant question for several reasons, not least because of the limited powers of tribal governments to enforce tribal laws on non-members, even on tribal lands. One precedent, set in Washington in the Oliphant vs. Suquamish Tribe case, in 1978, summarily stated that Indian courts did not have criminal jurisdiction over non-Indians absent express Congressional authorization (435 U.S. 191, 98 S.Ct.1011, 55L.Ed.2nd 209).
But, express Congressional authorization over some Indian property was embodied in the 1990 NAGPRA law (the Native American Graves Protection and Repatriation Act), which made it mandatory for government agencies and institutions in receipt of Federal support to provide Federally recongized tribes with access to information about and potential ownership of American Indian human remains, associated and unassociated funerary objects, sacred objects, and objects of patrimony. This exceptionally powerful law, which confirmed tribal sovereignty in various ways, gave tribes a no-time limit open access opportunity to recover cultural materials that they could, within Congressional limits, define as sacred or patrimonial. Most museums did not consider, when required to provide summaries and inventories to tribes of their holdings, any of the products of intellectual property research, but instead focused theit attention on 3-dimenional objects alone. At the Burke Museum, where I am in charge of repatriation, I did provide inventories of all recorded materials as well as photos, since we knew that in some communities certain oral data would be owned and/or potentially sacred, just as in others some photos of sacred objects were themselves thus sacred.
The repatriation of cultural materials can be claimed by Federally recogized tribes or lineal descendants who can prove cultural affiliation. While a lineal descendant does not have to be a tribal member, but only the descendant of one, the tribe must show affiliation in the form of “A relationship of shared group identity which can reasonably be traced historically or prehistorically between members of a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group.”
Thus far, no one has come forward to claim any of these intellectual property cultural materials from us, or, as far as I know, from any other museum or government agency. But could they do so? I believe this remains a distinct possibility, although any repatriation of such materials would have to meet several tests set forth in the law. For example, to be repatriated as a sacred object it would be required to show that the song was necessary in order to carry out a sacred ceremony for the benefit of current believers, or to recreate or renew a ceremony, and this would presume that access to that song in some form other than ownership was required.
Precise language: “Sacred objects means items that are specific ceremonial objects needed by traditional Native American religious leaders for the current practice of traditional Native American religions by their present-day adherents.” - While many items ...might be imbued with sacredness in the eyes of an individual, these regulations are specifically limited to objects that were devoted to a traditional Native American religious ceremony or ritual and which have religious significance or function in the continued observance or renewal of such ceremony.”
A “traditional religious leader” must be someone who is recognized by members of that Indian tribe as being responsible for performing cultural duties relating to the ceremonial or religious traditions of that group or, exercising a leadership role in an Indian tribe based on the group’s cultural , ceremonial, or religious practices.”
Who would then own that song? Probably in most cases the tribe itself, since it is the body empowered by this law to seek recovery. Once within tribal hands the tribal government can do as it pleases - including turning the song over to an individual, family, or group. Would this repatriation abrogate copyright held presumptively by someone else? Perhaps so, but let’s examine the other potential relevant category of property covered by NAGPRA.
What about a song or music claimed as patrimony? Again, the legal premise under NAGPRA is that the song or music would have to be shown to have been the collective property of the whole group, or some important group within the tribe.
Precise language: “Objects of cultural patrimony means cultural items having ongoing historical, traditional, or cultural importance central to the Indian Tribe itself, rather than property owned by an indvidual Tribal member. These objects are of such central importance that they may not be alienated, appropriated, or conveyed by any individual Tribal member. Such objects must have been considered inalienable at the time the object was separated from the group.”
For example, if a Pueblo Kiva Society had a song recorded unbeknowst to them, or had entrusted it to an individual who later shared it with outsiders, they could make the argument that that song was not only sacred but also patrimonial, since Kiva Society religious property - including songs - are held and used for the collective benefit of the whole tribal community and thus can be argued to be patrimonial in nature. Such property can be repatriated to the Kiva Society via the tribal government. So again we ask, would this transfer be a transfer of ownership and would that repatriation restore all ownership rights to the tribe?
The principle seems fairly clear. If a rattle or drum is repatriated to a tribe as a cultural sacred object, for example, the tribe gains full and complete ownership rights in that rattle or drum, including any rights of copyright. The same holds true for an object of patrimony that is repatriated to a tribe. Unless, of course, a final test set out in NAGPRA can’t be met: the right of possession.
Congress recognized that there might well be cases where objects had been transferred out of tribal hands voluntarily. The sale of Northwest Coast traditional crest objects, for example, would fall routinely into this category. Thus it created the possibility that an outsider - an individual, museum, or agency - could have “right of possession”.
“Right of possession’ means possession obtained with the voluntary consent of an individual or group that had authority of alienation. The original acquisition of a Native American unassociated funerary object, sacred object, or object of cultural patrimony from an Indian tribe or Native Hawaiian organization with the voluntary consent of an individual or group with authority to alienate such object is deemed to give right of possession of that object....”
This takes us back to the post-1970s National Research Act period which set forth regulations regarding human subjects in research and which required consent forms. If such a consent form had been signed, then the implication is that the information provided did transfer with right of possession to the recorder, at least of the recording itself , and in the absence of any other written agreement about the research and its products. But what about the pre-1970s period when no such consent forms were required?
Without some form of direct proof that an object was voluntarily alienated then “right of possession” is certainly not automatically clearcut. This is the situation in which many government agencies and museums find themselves with regard to “right of possession”. Their records are usually from non-Indian donors or sellers where you cannot establish that the original transfer was legitimate or else they indicate a transfer from an Indian source indicated simply as “obtained from” etc., but without any details to make it clear how the transfer of ownership was completed. In all of these cases we assume that the burden of proof is on the museum or agency and that in all but the most obvious cases that burden will not be met, i.e. the tribe can claim repatriation without a successful “right of possession” counterclaim by the institution.
So, what about a researcher who in the 1930s or 1940s period collected recordings which were not published, but who instead gave those recordings to a museum or agency archives. Are these ‘objects’ which could otherwise be repatriated under NAGPRA if they met the cultural criteria? I believe they are, since Federal copyright law treats recordings as objects, i.e. the fixed tangible expression of that music or song or oral literature.
What if these recordings were not in an institution, but instead in private posession?
NAGPRA only applies to institutionally controlled cultural resources, and not to anything in the private arena, with one exception. The exception is that NAGPRA is also criminal law, in that it has an illegal trafficking provision:
“ Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items obtained in violation of the Native American Grave Protection and Repatriation act shall be fined in accordance with this title, imprisoned not more than one year, or both, and in the case of a second or subsequent violation, be fined in accordance with this title, imprisoned not more than 5 years or both.”
So private ownership may be legal, but disposition may be illegal, including donation to a museum since that would confer tax benefits, a profit to the donor.
There are several key issues of interpretation involved in this review of NAGPRA:
For example, are songs etc. which have been recorded ‘objects’ as defined by the law, or was Congressional intent to exclude intellectual property, as opposed to tangible personal
property. This is a point that has not yet been argued on either side in a real case. If they are objects, can they be repatriated? I think so, since those regulations are clear.
Thus far, no tribe has sought, been denied, or repatriated a song, music, a specific piece of tradiitional oral literature, or a photograph to the best of my knowledge. But there is also no time limit on this law and most tribes are still in the process of trying to resolve archaeological issues- including the repatriation and disposition of human remains, so we may yet see these kinds of materials brought up for repatriation under NAGPRA. And, of course, there is the additional problem that most museums and agencies would not have included any of these kinds of materials in the summary or inventory lists that they have sent tribes as required by NAGPRA, unless they were specifically asked by a tribe to do so.
This brings us to the issue of copyright law and its relationship to traditional music. As you are all aware - and probably far better than I am - Western copyright law has certain inherent constraints and fundamental principles that affect traditional knowledge and its products.
Copyright is a legal protection granted to original works of authorship that can be put into a tangible form, including with the aid of a machine, such as a recording device. And, copyright exists automatically from the moment of creation, i.e. when it is fixed in a copy or recorded the first time. So, musical works and recordings can be copyright protected from unauthorized or unlicensed use, distribution, reproduction, and performance, but only if these two basic conditions can be met in the first place. More important, no work that is entirely common property, is lacking in original authorship, or which is not fixed in tangible form, can be copyrighted.
Can traditional Native American music be copyrighted? Well, it depends. Some traditional Native American music is, of course, individually owned and if it is the creation of that individual and that individual is willing to fix it permanently in tangible form then copyright is applicable.
Beyond this, we must ask if the music has been created at some time in the past and passed along orally to many different individuals or groups of individuals. Individually controlled songs might be copyrighted if we assumed that only one person or group of persons were willing to assert authorship at one moment in time through the mechanism of fixing the music in tangible form, i.e. recording it. But this clearly stretches the idea of original authorship, perhaps beyond the law’s intent. It also begs the question of whether or not someone is willing to see certain songs or music recorded, a problematic issue for some sacred materials in some tribes. Also, would we accord a guardian of a song or music who holds the music on behalf of a larger group the autonomous right to copyright that music? Certainly not by traditional law in many tribal communities, but this does not appear to be a problem as far as US copyright law is concerned, so long as the original authorship issue can be resolved.
In other words, I believe that traditional Native American music lies in an intellectual property limbo for tribal communities for several reasons:
(1) Music recorded by an outsider, without any formal agreement regarding ownership or copyright with the source or the tribe, and which was then published, would have copyright going to the outsider, placing the the music out of tribal hands and subject to the applicable duration of copyright protection.
(and, of course, recordings made earlier but not found now are basically a moot issue)
(2) if that copyright duration has now elapsed then the materials are in the public domain and also not subject to tribal control
(3) if the music was recorded and deposited in an institution then NAGPRA’s provisions might apply for the repatriation of such works to tribal control but only if the music is either sacred or patrimonial, can be shown to have been acquired without right of possession, cultural affiliation can be demonstrated by the tribe to the work can be proven, and, the institution does not contest the request on the grounds that the music is not an ‘object’
and, finally,
(4) traditional music appears to lie outside the protections of US copyright law because it can’t meet the original authorship requirements in the law, or no one is willing to fix it in tangible form. Copyright is essentially an individual intellectual property right, not applicable to traditional group held intellectual property.
I do not believe that it is feasible to imagine modifying yet again U.S. copyright law to include traditional music, if only because its basic and inherent nature would disqualify it - you’d be asking Congress to essentially create two diametrically opposed sets of copyright laws in one law.
This is not a unique circumstance. Many indigenous groups share these concerns. In 1993, for example, the Mataatua Declaration issued in New Zealand sought UN based legal protections for indigenous intellectual property. The Maori continue to seek a way to use Maori values and cultural beliefs to protect their intellectual property and, moreover, to enforce that in non-Maori law. One interim measure is a Maori artists initiative to develop a national brand name and logo for all Maori-made products, and thus using this trademark for legal protection. This is similar to earlier efforts in Canada and elsewhere to have artists’ guild and logos, or, for example, to the American Indian Arts and Crafts Act. But all of these don’t really address the main issue we’re considering today, or what tribes might do.
I believe it is reasonable for us to consider what tribal governments themselves can do to protect traditional music, and I think that there are in fact several options.
First, tribal governments can adopt research contracts, agreements, or requirements that control the manner in which traditional knowledge, including music, is acquired by those from outside the community. Some governments have done this.
Among the very first of these are the research forms developed by the Massett and the the Hesquiaht, in British Columbia, in 1971 and 1972. Aside from requiring complete disclosure of all funding and institutional connections, the Massett tribal document also requires that researchers indicate their willingess to negotiate editorial, copyright, and distribution rights, leave originals of audio or other tapes in the community, and so on.
The Hesquiaht also required, at least in once case, that the researcher turn over all recordings to the tribe, not publish personal data without tribal permission, turn over all royalties from resulting works to the tribe, and allow the tribe to include their own review and comments in any publication.
This process continues. For example, here is a part of the proposed Hopi Cultural Preservation Code:
“The CPO will develop a Research and Ethical Guidelines policy for all proposed research to be conducted at Hopi. This will include a review porcess with rules and procedures to assist permitted research. This will ensure that ‘any sensitive information that Hopi does not want to become public knowledge is identified and removed from a document prior to its being published’. .....The knowledge of our history and culture has been of interest to many. Intellectual Property can include, but is not limited to, traditional medicinal plants and their uses, the Hopi language, clan stories, songs, teachings, and the knowledge of traditional seeds and their uses. The Code will address and allow for more research in trademark, patent, and copyright laws for possible use by the Hopi tribe for the Hopi people. In that respect, the Code will seek to protect esoteric, cultural, and religious knowledge from unauthorized research and commodification.”
Other tribes today commonly have tribal legal staff prepare formal contracts for any research work. This strategy serves several purposes: (1) it places the researcher on warning that there are things that can and cannot be done, that will and will not be allowed; (2) it gives the tribe the opportunity to consider what is in its best interests with respect to the proposed research; and, (3) it establishes an enforcable contract that can be pursued if its provisions are violated. Finally, such contracts might actually be on a ‘work for hire’ basis in which case the tribe would automatically own all of the products of the work done.
Some Western tribes take a much more relaxed view of this, and only require that copies of recordings made be left with the tribe, and that all such recordings actually be made by tribal staff on behalf of the researcher. In these cases the tribe seeks not to deny any tribal member the right to do or say what they will to a researcher, but only to make sure that the tribal member is not being placed in a situation where they will be taken advantage of by the researcher, and that the tribe has a copy of all that is done. The researcher keeps the originals of the recordings.
Still another option seems to me to be both feasible and potentially valuable - the adoption by tribal governments of their own copyright laws based on their own values and precepts for traditional knowledge, including traditional music.
Such laws could recognize non-original authorship, group ownership, and other aspects of traditional intellectual property important to the tribal community, as well as confering tribal copyright on individually authored and owned materials such as those now recognized and protected by US Copyright law. The possibility of reciprocal recognition of tribal copyright by the US copyright office could also resolve the jurisdictional enforcement problem once materials leave the community. But is this a good idea? I doubt that everyone would agree that creating a new tribal law to protect sometimes ancient and sacred intellectual property is reasonable. I can only say that such laws can and should be crafted to meet each individual community’s standards, to reflect each community’s values, cultural beliefs, and traditional laws. And there are serious issues that would need to be discussed and agreed upon before enacting a tribal copyright law.
For example, how would we deal with the US copyright law requirement of fixation in tangible form? One possibility is a tribal copyright law provision that establishes tribal certification of authorship or guardianship, with one copy deposited in a secure tribal archives to be accessed and used only by the “owners” at their descretion, or otherwise held by them after an authorized tribal agency certifies the existence of the recording.
In discussions with some tribal artists such laws might also have another benefit: the possibility of new individual creations being far more easily copyrighted and protected than is now often true, thus preventing misappropriation. This would be especially so with reciprocal agreements with the US Copyright Office.
The possibility of adopting tribal copyright laws may not be an ideal solution to this continuing problem, nor perhaps the best solution, nor even a solution that some small tribes could carry out without assistance. It asks tribes to take on a new role - but so too does the other option of research controls and contracts. Is it worth pursuing? That also depends on how much we value traditional music and its control within tribal communities. I think it is. I think it is imperative that we find ways to protect what can still be protected of our traditional knowledge, and welcome your thoughts on how best to do this.