Appropriation of minority religious or other cultural images by outsiders – often, though not always, as a status symbol or fashion statement – is a sharpening point of controversy in some parts of the world. People from the originating cultures are upset for any or all of a number of reasons:
- Some images are traditionally classified “eyes only” for certain individuals or subgroups under certain circumstances.
- The right to display some images traditionally had to be earned rather than bought.
- Outsiders displaying the images often do not know or care about their meanings or the traditional rules for how they are to be displayed.
- Some images are traditionally not intended for fixation in some types of media, or for any type of permanent fixation at all.
- Even if none of the above objections apply and the image may be embodied in a commodity and sold, people who believe they should be entitled to a share of the proceeds aren’t getting any.
Many people from today’s dominant cultures find it difficult to identify with these issues. After all, most of the “big” religions tolerate, or even approve of, use of their symbols on items for sale to anyone, as long as it’s done respectfully. Members of these religions who see their symbol (for instance, a cross, a star of David, a Buddha, a MashaAllah) on a piece of jewelry, a bumper sticker, or a home decoration think “Oh, good – there’s another one of us.” Religions that encourage outsiders to convert appreciate the advertising, and even those that don’t encourage conversion may approve of the public acknowledgement. However, even they would disapprove of disrespectful use of their symbols – for example, on underwear (Mormon temple undergarments aside) or on toilet-cleaning brushes. On the cultural side, one U.S. example is everyone wearing green and sporting shamrocks – basically, pretending to be Irish – on St. Patrick’s Day, regardless of their actual ancestry. The Irish-Americans, who as a group are now throughly accepted in mainstream U.S. society after a long struggle to amass the mutually-reinforcing resources of wealth and political power, don’t mind this a bit; why shouldn’t the “less fortunate” experience how great it is to be Irish-American for one day a year? However, 120 years or so ago, when American bars and restaurants still routinely posted “No dogs or Irish” signs, Irish-Americans, relegated to the dirty, dangerous jobs no one else wanted (such as coal mining, railroad construction, and police work) might not have cast such a benevolent eye on a bunch of rich WASP posers singing “Too-ra-loo-ra-loo-ra” and sloshing green-dyed beer all over their “Kiss Me, I’m Irish” buttons on St. Paddy’s day. (But, of course, back then, it didn’t happen; even the Irish didn’t really want to be Irish back then).
Just as few people actually wake up in the morning thinking “Who can I oppress today?”, most buyers (and even some makers and vendors) of appropriated symbols are not thinking “Now to steal these folks’ culture, since they don’t have much else! Bwa-ha-ha-haaaa!” They’re thinking, “Wow, this thing looks cool. I’d like to have one, and I bet other people would think it was cool too.” (By this, I don’t mean to excuse appropriation of other cultures’ symbols, but only to offer insight into a common attitude among those who do so).
I happen to know firsthand whereof I speak. When I was seven years old, I became aesthetically infatuated with the star of David because I liked things that changed character depending on how you looked at them (“It’s a star, or it’s two big interlocked triangles, or it’s a hexagon surrounded by six little triangles. Wow! Cool”). My reflex was to make something that incorporated it. (I still have this reflex toward arrangements of shapes and lines I like, but now I think carefully before acting on it). I knew how to sew and embroider, so I made a simple crewelwork antimacassar, with the component shapes in different colors of yarn so you could look at them separately if you wanted, and draped it on our living-room rocker to surprise my (VERY Catholic) parents. Oh, they were surprised, all right! They acted awkward for a minute or two, then told me to give it to our Jewish next-door neighbors. My feelings were slightly hurt at the time by my parents’ apparent rejection of my handiwork for then-mysterious reasons, but now I realize they were pretty diplomatic about it, considering.
And, after all, we all DO know about certain symbols we’re not allowed to copy onto just anything – they’re called trademarks. In fact, artists from some of the same minority cultures that now complain about their symbols being appropriated have, from time to time, created works that, technically, infringed trademarks. They didn’t know they weren’t supposed to use those symbols; they probably couldn’t have found out easily, since even the missionary schools didn’t include intellectual-property law in their curricula; and, wow, some of those symbols looked cool. A great example (because it has a happy ending) is described in Gladys Reichard’s book, Weaving a Navajo Blanket. Back when the Dineh (Navajo) were much more isolated from the outside world than they are today, their weavers, like artists everywhere, scoured their environment for fresh inspiration. Labels on things being sold at the trading post, where the weavers went to sell their work, often provided new ideas. Once, one of the most prominent weavers told the manager of her local trading post that she was working on an exciting new project, but it was a secret. He looked forward to its completion because he always got good prices for her work. Months later, it was revealed: a large, beautifully made. . . faithful rendition of the Ivory Soap label! The weaver was very proud, but the trading-post manager despaired of ever selling it to the tourists and gallery owners who bought most of the local weaving he carried. Proctor & Gamble, the company that made Ivory Soap, found out about it, and – to its everlasting credit – did not file a trademark-infringement action against her, but bought the work for display in its corporate office.
So, you may ask, why don’t these cultures just trademark all the symbols they don’t want people copying? This would work in a few circumstances, but not many. First, the “owners” of the symbol would need to use it, or intend to use it, “in commerce.” Next, the symbol couldn’t be a “functional” part of the product. A religious medal would pass muster because, as a product, it’s a pendant necklace, and could still be one without the symbol on it. Sets of prayer beads might not, because the design is so bound up with the finished object’s purpose. The biggest obstacle, though will arise if the symbol has already been commodified and sold by outsiders (in some countries, if the outsiders registered the symbol as a trademark, and in other countries, including the U.S., even if they didn’t).
Here’s a hypothetical example based on a real situation. The real part: Wal-Mart wants to trademark the “smiley face” in the U.S., but London-based SmileyWorld, which holds a trademark on the smiley in more than 80 other countries, and whose honcho says he ivented it in 1968, opposes it. The Los Angeles County Museum of Art, has a 17th-century Tibetan phurpa (sometimes spelled “purba” or “phurba”) decorated, I kid you not, with a bunch of tiny SMILEY FACES!* (While looking for these links, I also discovered that the Martian crater Galle has looked like a smiley face for who-knows-how-long). Despite their long use of the symbol, the Tibetans (or, for that matter, the Martians) would find themselves unable to use the smiley as a trademark in any of SmileyWorld’s countries and would be vigorously opposed by both SmileyWorld and WalMart in the U.S.
Trademarks, with all their limitations for this purpose, are still better suited for protection of religious and cultural symbols than the other two IP rights applicable to symbols, design patents and copyrights. Patents require novelty and copyrights require originality, and both rights are awarded to the creator of the design. The symbols we’re discussing here are traditional; if anyone remembers who created them, that person is probably not still alive.
No existing IP right can keep symbols from being commodified, or seen, or fixed in a permanent medium, if they’re not supposed to be. Under conventional property law, even people who buy original “eyes-only-classified” religious or cultural artifacts from thieves may be protected as “bona fide purchasers” if they had no reason to know the thief was not authorized to convey the artifacts. Relatively new sui generis cultural-property laws, such as the U.S. Native American Graves Protection and Repatriation Act (NAGPRA) are often the only way to achieve the return of these artifacts. For example, under NAGPRA, museums and collectors were compelled to return Zuni Ahayu:da statues to the pueblo’s priests. These statues of the Zuni twin war gods are traditionally kept in protected limited-access shrines to rein in the gods’ destructive powers; traditional Zunis believe that the thieves’ removal of the statutes from the shrines caused specific disasters and a general spiritual imbalance. Where laws like NAGPRA do not apply, only good security practices by the custodians, or respect for the custodians’ customary rules by outsiders (such as the museums that allow Tibetan monks to destroy their traditionally-temporary sand paintings** after making them for public view) can prevent exposure problems with symbols of this class.
*I’m so profoundly delighted by the Tibetan smiley phurpa that I’ve asked permission to reproduce the photo on this site. Someone told me that the “smileys” are actually meant to be skulls, but skulls degenerate to smileys when you try to make them very small (this probably says something profound about the human subconscious). Skulls are a fairly common element of Tibetan ritual art, so this explanation is plausible.
** The Dineh (Navajo) are another culture famed for their temporary ceremonial sand paintings. Dr. Lori Alvord’s autobiography, The Scalpel and the Silver Bear, contains an account of how an old photograph of a nearly-forgotten Dineh sand painting identified the deer mouse as the vector for hantavirus in the early 1990s. Hantavirus had broken out periodically in Navajoland before, on widely separated occasions when particular atypical weather patterns caused a deer-mouse population explosion that drove the mice (and the viruses they hosted) into the human habitations they normally avoided. The earlier outbreaks, however, had not come to national attention because they were confined to areas that were then extrmely isolated. This photograph saved considerable Center for Disease Control resources and probably many lives, whether or not it was authorized when originally taken.