I recently gave a talk on current thinking about cultural theft to an audience at Southwest Seminars, a Santa Fe-based organization that sponsors a public lecture nearly every week of the year as well as frequent field trips in the region.  As one might expect in Santa Fe, a town long known for its artists (Indigenous and otherwise), after the lecture a number of people expressed concern about whether their own art works represented cultural appropriation.  As one woman put it—and here I paraphrase—”My work is inspired both by the spectacular New Mexican landscape and the work of the Native Americans who portray it in their ancient artistic traditions.  Is that wrong?”

I have no way of knowing whether her paintings represent a commercial activity or only  a hobby.  In the latter case, it’s hard to see how imitations of, say, Pueblo pottery designs harm anyone.  Still, it reminded me of how complex and confusing the issue of cultural appropriation is for many people, especially at the non-commercial end of the arts spectrum.  And then there’s the question of how, or even whether, Indigenous artistic productions can be protected when appropriators imitate the style of a given tradition rather than actual works.

Some of these issues are addressed, and others dodged, in a recent news story about efforts to protect the intellectual/cultural property of Maya weavers in Guatemala.  According to the story, the IP laws of Guatemala explicitly excludes Indigenous art from protection.  A group of weavers has filed a lawsuit seeking government protection for their work:

Aspuac says that royalties received as a result of the patent would be divided among the community. The community will designate representatives to negotiate on their behalf with companies seeking to use their designs, and manage the distribution of funds back into the community. Aspuac and other leading members of the movement want to see the money invested in social projects like weaving schools and education for women and children.

The hope is that with the patenting of their textiles and designs, the Maya community would have more autonomy and control over their heritage and culture, thus alleviating two of the major hardships the community faces: cultural appropriation and dispossession. Royalties received from the patent would also give the communities the chance to end a long-standing cycle of poverty. [Source]

This sounds like a promising approach, and I hope it enjoys success.  Nevertheless, it begs the question of whether such a law would effectively prevent the sale of “Maya-inspired” designs that don’t consist of exact copies of existing works.  Where does Mayan creativity end and some other society’s creativity begin?  How far into the past would such protection extend? And would it protect the work of Maya weavers experimenting with radically new artistic forms?  The latter question might sound hypothetical, but after three years of hosting Native American artist fellows at SAR, I’ve come to appreciate how many of them are joyously breaking with tradition to pioneer powerful hybridized art.  An example is found in the paintings of Ehren Kee Natay, as well as his work in other media.  Ehren was SAR’s Rollin and Mary Ella King Native Artist Fellow in 2014. I expect that Indigenous Guatemalan artists aren’t far behind.

One possible solution for the Guatemalan case would be to complement conventional copyright protection of finished works with a licensing program that would allow manufacturers to certify their work as “Mayan” or “Maya-inspired” for a fee.  The licensing fee would have to be modest enough to be absorbed as part of the cost of doing business.  It would be similar to Fair Trade certification, which assures customers that they are doing the right thing by purchasing a certified product.  This strikes me as administratively more plausible than trying to enforce a “cultural copyright” on Maya weaving in all its forms and variations.

On a related front, be sure to check out the website of the Creative Sensitivity Project, the goal of which is to “get as many creatives as possible to understand the effects and ramifications of cultural misappropriation to understand how their job as creative practitioners will effect marginalised groups in society.”