Scenes from the Colonial Catwalk

Scenes from the Colonial Catwalk: Cultural Appropriation, Intellectual Property Rights, and Fashion

Peter Shand University of Auckland, New Zealand

INTRODUCTION

n 1907 the English manufacturer Walters; his style, in turn, was based on Royal Doulton introduced porcelain a geometric version of the koru. Cur- Ifeaturing a design called “Maori rently, numerous Government depart- Art”: cups, saucers and plates glazed ments have stylized koru or Maori weav- with red, black, and white to reproduce ing-derived patterns in their letterheads, a suite of interlocking patterns that are and tourists clamor for Maori art prod- generically known as “koru.” From the ucts made both in New Zealand and 1930s similar patterns have appeared on overseas. Fashion houses, both at home New Zealand postage stamps, and the and abroad, have appropriated Maori koru is currently employed in a decora- design as modish. It appears painted on tive border on the two-dollar coin. Since the faces of famous men adorning the the 1960s Air New Zealand has ferried covers of fashion magazines, or as part people around the country and the of a global advertising campaign for a globe, a koru design on its tail and until sporting goods manufacturer. It enters the late 1970s plastic tiki given to every the world of the pop music market passenger. In 1985 packets of New through a tattoo on Robbie Williams’ left Zealand butter included a small graphic shoulder by Maori tattooist Te Rangitu which told consumers a portion of the Netana. Maori intellectual property purchase price was going to support the would seem from this to be global—cer- America’s Cup Campaign in tainly it is more widely and more casu- Freemantle, Australia. That graphic was ally received than it has been in the past. a blue and yellow triangle containing a In this same year, 2002, Te Waka Toi series of alternating bar-stop figures de- (the Maori-funding arm of the national rived from the mature style of the mod- arts funding agency) launched “Toi Iho” ernist New Zealand painter Gordon a Maori-made mark, which is intended

Cultural Analysis 2002, 3: 47-88 ©2002 by The University of California. All rights reserved 47 Peter Shand

to function as a mark indicating Maori lectual from cultural, taonga from authorship of products and as a quality Matauranga Maori, graphic from perfor- mark. In addition, the Waitangi Tribunal mance) is, in some sense, artificial, for (the national body established to hear Maori culture is informed and strength- claims arising out of New Zealand’s 1840 ened by the interaction of its many fac- Treaty of Waitangi/Te Tiriti o Waitangi ets. I declare, at the outset, that I am not signed between the Crown and many Maori myself but claim pakeha iden- Maori iwi) is still hearing evidence in one tity—which, for me, is a specific identi- of the most complex claims likely to fying nomenclature given by Maori to come before it: the Wai.262 claim on people who, like myself, are of nominally Matauranga Maori (knowledge) and European, predominantly British de- Taonga Maori (treasures). Unlike previ- scent. I also register that the article is ous claims, which have focussed on real somewhat wide-ranging in its discus- property or specific resource rights, this sion. The intention of this is to try to re- claim focuses on the intellectual re- flect the range and interrelatedness of the sources of Maori. The mark and the claim many issues that emerge in any discus- are indicative of the currency of the is- sion of the reproduction of indigenous sues raised in this article; they also reg- cultural heritage and issues surrounding ister the reality that contemporary indig- its reproducibility. enous peoples continue to engage with these issues and to develop new strate- THE KORU: A SEMIOLOGICAL gies in order to shape the manner of the ANALYSIS reproduction of indigenous cultural heri- In general terms, the koru is the design tage. form of a curvilinear element punctuated In the broadest sense, this article sits with a circular stoppage. It serves as the in a similar time and space inasmuch as central design feature of a number of it is a discussion of some of the ways in modes of traditional Maori artistic prac- which Maori design has been copied and tice; moko (tattooing), heke (rafter) paint- utilized by non-Maori. Its predominant ing, and hue (gourd) and hoe (paddle) focus is drawn from two fields of inquiry: decoration are the principal examples of cultural appropriation as this has been these. As one part of what is often a com- figured in art history and cultural stud- plex interaction of attenuated and tense ies, and the law pertaining to intellectual schemes, formally resolved within an property. These are, of course, enormous overall compositional scheme on skin or fields in themselves, so to try to come to wood, the koru is both clearly identifi- a closer focus, the article seeks to ana- able with Maori artistic practice and an lyze one part of Maori intellectual prop- indication of the formal sophistication of erty rights, those pertaining to graphic that practice. It speaks both of the generic works, and position this analysis in rela- identity of Maori art-makers as tangata tion to one aspect of their use, the fash- whenua (indigenous peoples) and of ei- ion industry. In doing so I register that ther the specific individual identities of such a division of cultural terms (intel- wearers of moko1 or, by its inclusion in

48 Scenes from the Colonial Catwalk

the interior of whare runanga (meeting frond” or as banal as “stalk and bulb.” house; center for the community), of the The important factor in making this collective identities of specific iwi, hapu, distinction lies in that between or whanau (tribe, sub-tribe, extended denotational and connotational mean- family). ing. Roland Barthes writes of the char- W.J. Phillipps posited a definition of acter of connotation that it is “at once the koru in a 1938 article in Art in New general, global and diffuse; it is, if you Zealand. He described the design as or- like, a fragment of ideology” (Barthes ganic in origin, referring to the apparent 1967, 151). This fragment is of consider- morphological similarity of the single able relevance to any analysis of Maori koru to a curving stalk with a bulb at one art, a point pursued by Neich when he end (Phillipps 1938). This interpretation writes: linking the koru to unfolding plant growth is one which, as Roger Neich [it] has limited denotative meaning notes, “is now very strong in the Maori but a wide, rich field of connotative view” (Neich 1993, 39). This is, to some meaning, which finds its reference in extent, the result of apprehending an the total cultural ideology. Thus the apparent visual similarity between the signifieds of denotation are the few limited meanings that can be ob- design and flora, desiring, perhaps, some tained by direct questioning, while connection of human culture and the the signifieds of connotation require natural world and implying, positively, a familiarity with the cultural ideol- a sense of growth. An alternate natural ogy for their appreciation. form is claimed by Augustus Hamilton Connotation takes one away in The Art Workmanship of the Maori Race from the immediate context to the in New Zealand where he claims a con- general diffuse culture. This probably nection between the koru and the form explains why European investigators, of waves beating upon the shore lacking the conceptual tool kit for ask- (Hamilton 1896). Again, the assumption ing relevant questions about Maori seems to be based on a morphological art, could rarely penetrate below the superficial denoted meanings. (Neich analysis of the design and the known 1993, 36) natural world of the artists who used it. Nevertheless, this denotational reckon- A pertinent example of this may be ing of Maori iconography is inherently found in the rafters of the meeting house misleading. What is absent from such a and on some tombs and monuments— focus on the potential visual sources for many of which are painted with the form in the natural world is the rec- kowhaiwhai (a system of attenuated in- ognition of the important connotational terweaving koru elements). In the case significance that applies in the use of the of the meeting house, kowhaiwhai are koru. These are often complex semiologi- frequently painted along the tahu (ridge- cal constructs that afford deeper and pole) and down the heke (rafters). These broader patterns of meaning to emerge standard sites of kowhaiwhai significa- than something as defined as “fern

49 Peter Shand

tion are symbolically important to the was unique to place. In this rubric, mean- whakapapa (genealogy) of individual ing is made over from a specific connec- tribes. The tahu, for example, refers not tion to the implications of individuals or only to the ridgepole of the house but individual structures to a more broad- also to important tupuna (ancestors), based national identity. This strategy was starting with the original tupuna. The adopted by a number of New Zealand heke, regularly spaced rafters, symbol- pakeha artists in an attempt to develop ize the lines of descent from these tupuna a distinct strain of modernist practice. or to their migration (heke as a noun This was, to varying degrees, founded means rafters and as a verb can mean on a process of mutual racial assimila- both descend and migrate). In this re- tion with the notion of something new spect, the decorative scheme takes its and different emerging from the connec- place within the overall symbology of the tion. The koru, as a specific element of house, linking the eponymous ancestor Maori art, served that desire for novelty at the front apex of the house to the sub- and difference. This power of art to trans- sidiary tupuna lining the walls. Within form experience was given its most pow- this overall system, Anne Salmond “has erful and ambitious application in re- identified a series of associations through spect of the koru with the introduction Maori words relating images of hill of an education scheme in the 1950s. Ini- ridges, house ridges, lines and threads tiated by Gordon Tovey, this scheme saw through a broad concept of mediation the introduction of koru painting as a and linking, to express aspects of descent, part of the art curriculum—initially at el- authority and communication” (Neich ementary school but it now forms part 1993, 38; see Salmond 1978, 9). of the syllabus at high school as well. The Of course, the koru can communicate mode of expression was deliberately se- to other people and in other ways. In an lected to be something that was available impoverished semiological field, for ex- for those with elementary skill levels, ample, it can refer more generically to was capable of increasing complexity, Maori and Maori artistry. Beyond this, and, most importantly, spoke of local its increasing use by non-Maori design- content. ers and artists since the late 1920s can The incorporation of the koru into the refer to a new signification of the koru national art identity (in galleries and in as an important part or, indeed, basis of schools) also suggested for some the a nationalistic graphic enterprise. Its emergence of a bi-cultural nation. This emergence as an important feature of important connotational meaning has currency, postage stamps, national pam- been seized upon, increasingly over the phlets and magazines, or in the architec- past two decades, by tourist operators, ture of important institutions (the cor- by corporations, and by government in nices of the Auckland War Memorial an attempt to portray the divergent eth- Museum or of the Napier Bank of New nic make-up of the country. The prolif- Zealand, for example) suggests it was eration of Walters-inspired bar/stop utilized to forge a sense of design that derivations of the koru, in logos or on

50 Scenes from the Colonial Catwalk

the covers of books addressing issues of critic of cultural appropriation, puts it: importance to Maori as well as books addressing Maori-pakeha relations, for [well, the koru] becomes a plastic example, is indicative of the suggestive symbol. And, admittedly, we look at power of a modernized, standardized the Air New Zealand tail and think formal version of the koru. In govern- “there is a koru,” and we can’t argue . . . (Te Awekotuku 1986, 52) ment it creates the appearance of a dual- istic principle (complemented by Maori Interestingly, when the company went transliterations of ministry names) but through a re-branding exercise in the which some would argue is a screen to mid-1990s a decision was made not to monocultural practices and policies. register the famous tail decoration as a Similarly, its use by corporations, smaller trademark. Rather, the company asserted companies, and/or tourist operators in- its trademark over what it calls “the Pa- volves the presentation of an outwardly cific wave,” a simple stylized serpentine New Zealand identity—a signification curve in two colors that adorns the fuse- carried by the association of the koru lage of the company’s aircrafts. This was with a specific geographical and socio- apparently a deliberate decision made in cultural location order to maintain the goodwill of the Perhaps the most resonant example airline’s prime consumer base (New of this was in the mind of the Crown Zealanders) and to avoid risk of engag- Counsel at the opening hui (meeting) of ing in any sort of conflict over asserted the Wai.262 claim (in Kaitaia, September interests that different Maori tribal 15, 1997) when he asked “who owns the groups might claim with respect to this koru?” in reference to the symbol of Air form of the koru. New Zealand. This reveals the complex In this way, the koru on the tail of an interplay of issues at stake here. The logo Air New Zealand plane, on the cover of uses an element of Maori design as if it its annual report, on the numerous pro- held no intrinsic meaning of its own; motional materials produced by the even so, it originally symbolized the company (whether sports sponsorship country. Its use on something as impres- or plastic give-aways), and as the name sive and romantic as an airliner might of the airline’s business class lounges is seem complimentary; yet, it remains just a figure of protracted ambivalence. On another corporate logo. At the same time, the one hand it is of considerable com- it is a logo that carries considerable mercial value to the airline. On the other weight as an evocation of the nation as a any attempt to capture the value of that whole—whether or not it is overlaid with symbol might well have proven alienat- images of native birds, smiling New ing for a company that wished to main- Zealanders of all creeds, the voice of a tain the aura of being the national car- great Maori opera singer, and the words rier but was, at the time, a private com- of an iconic Maori song as in the current pany.2 Indeed, the auratic value of the television advertising campaign. As koru as a logo for Air New Zealand is Ngahuia Te Awekotuku, a trenchant

51 Peter Shand

writ large because it seems to connote lar, if bizarre, mises en scènes in nineteenth more than that of a generic corporate century anthropological museums (the logo (the Nike swoosh; the roar of the Pitt Rivers Museum, Oxford, and the MGM lion; the Coke wave). In 2002 it upper level of the museum in Adelaide, seems to speak of a specific, though non- Australia, are excellent extant examples ethnocentric, collective identity, of con- of these) or in formal isolation in houses temporary nationhood for New Zealand. of modern art (of which Art of the South Ambivalence regarding this declaration Pacific curated by Rene d’Harnoncourt stems from the fact that it is a nation still at the Museum of Modern Art, New coming to terms with its violent colonial York, in 1946 is a watershed in the re- history and the on-going implications of classification of indigenous cultural heri- its past for its present citizens. tage from artifact to art-object). The ze- nith of this approach is, famously and THE APPROPRIATION OF CUL- controversially, the 1984 exhibition th TURAL HERITAGE “Primitivism” in 20 Century Art: Affinity of the Tribal and the Modern at MoMA It is a dull fact that the initial phase of (Rubin 1984). Importantly, this seem- modern cultural heritage appropriation ingly hybrid language of the “primitive” was underscored by the twinned ages of or “tribal” and its putative other, “mod- Enlightenment and Empire, during ern,” represents one if not the key mo- which all the world was made over to fit ment of cultural production in the twen- the intellectual, economic, and cultural tieth century. It would seem, by indus- requirements of first Europe, then the trial liberals’ enthusiasm for “ethno-” United States. All manner of tangible and “eco-” tourism, “world music,” de- cultural heritage of indigenous peoples based forms of shamanism, pastiches of (from design patterns to artifacts to body ritualized body marking, “third-world parts, even the people themselves) were tat,” or mystical, New Age experiences, looted, stolen, traded, bought, and ex- that attraction for Otherness remains an changed by colonials of every status important feature of Euro-American cul- (from Governors General to itinerant tural values. Clearly there is the poten- sealers). These were studied, admired, tial for significant, indeed, world-chang- looked at, and forgotten; created manias ing benefits from this—witness the sig- of taste and connoisseurship or never nificance of indigenous peoples’ perspec- saw the light of day again, whether in tives, arguments and, to a much lesser the private houses, the palaces, or the degree, claims in environmental plan- museums of Empire. There many, many ning; or the rise of a new dialogue in remain. human rights, initiated by indigenous Because of their display, they became peoples of the world. Thus, in 2002, one available for appropriation into the cul- may observe that objects are being re- tural language of the very colonizers turned, ideologies are being respected, who had initially dislocated them. This permission is being sought—just not is equally true of their use in spectacu- enough and too infrequently. With these

52 Scenes from the Colonial Catwalk

ideas in mind, there are three aspects of concerns of modernist artists squared the appropriation of visual arts that I with those asserted to be in the minds of want to note: modernist affinity, indigenous artmakers. The accompany- postmodernist quotation, and commer- ing advertising campaign put this in the cial exploitation. shape of a series of crude comparisons Modernist appropriation is seem- of indigenous and modernist objects ingly straightforward. Representative with the byline “Which is ‘primitive’? artists from Paul Gauguin forward were Which is modern?” as if this were some- attracted to the potential for their work how at issue, when very few of the they saw in indigenous cultural heri- “primitive” objects in the exhibition reg- tage.3 They both copied individual ex- istered what might be described as amples into their work and emulated overtly “modern” responses—whether styles; they even presented their work as in materials or subject-matter (the exhi- capturing the essences they asserted bition was the subject of intense criticism, were present in such indigenous objects. most notably reviews such as Clifford The re-statement of this position in the 1985; Foster 1985; McEvilley 1985; see “Primitivism” exhibition at MoMA posi- also Clifford 1988; Hiller 1991; Rhodes tioned examples of indigenous cultural 1994; Shand 1997). heritage in formal connection with mod- The marriage of a high-modernist ab- ernist artworks in order to pursue the straction with, in the present case, the principal theses of the exhibition: that koru is a complicated affair. On the one both “sets” of work revealed key expres- hand, with reference to a work such as, sive tendencies of humanity and that the say, Painting #1, 1965, by Gordon Walters

Figure 1: Gordon Walters, Painting #1, 1965, pva on board, Auckland Art Gallery.

53 Peter Shand

(fig. 1), the original is an example of de- pal design aspect (the bar and stop) crop sign surely at least as sophisticated as the up as logos for nationalist enterprises: original examples of kowhaiwhai with from government agencies to national- which he was familiar. Nevertheless, in ized corporations. The “affinity” here is his appropriation of the form Walters one of visual similarity overlain with at affects a dislocation of the source form least one layer of additional interpreta- from its initial cultural context. In so do- tion derived from the beholder. ing, specific meanings are erased and Of course, the certainty of signs and cultural significances shift and slide to signification is said no longer to be avail- the point that some have argued the ap- able—certainty itself is presented as an propriation to be an equivalent of colo- illusory commodity in much contempo- nial occupation of indigenous art and de- rary art. Post-modern quotation reflects sign, a silencing of the koru (see, e.g., Te a pervasive sense of contingency and Awekotuku 1986; Panoho 1992; Shand dislocation in which all forms, regard- 1997; and compare with Bell 1989; Pound less of their original cultural context, are 1994). Yet, when on the cover of a book available for re-inscription. New Zealand about cultural relations, images like this artist Dick Frizzell’s Grocer with Moko, one garner admiring or at least accept- 1992, shows an apparently humorous ing comment from many citizens, includ- juxtaposition of two feted local icons (fig. ing Maori academics, as it seems to them 2). One is the face of the “Four Square to signify a “bi-cultural” national style. Man,” a logo for a chain of convenience In a similar vein, versions of the princi- stores. The second is the ta moko (facial tattoo) of Maori warriors. This finds it- self replicated in a variety of forms in the local and international context. It is still tattooed on the faces of Maori men, of- ten as a symbol of political resistance and tribal pride as much as the personal mana of the carrier. It is drawn with marker pens or eyeliner on the faces of Maori and non-Maori performers of Maori dance and song. It is presented in the global market in pastiche on the face of the French footballer Eric Cantona on a cover of the men’s style magazine GQ or employed seriously in campaigns for Air New Zealand or Adidas, sponsors of the national rugby team, the All Blacks. The fusion of high and low cul- tures in this example is a useful illustra- Figure 2: Dick Frizzell, Grocer with Moko, 1992, 700mm x 600mm, oil on canvas, private collection. tion of the opportunities for cultural cri- tique and revelation made possible

54 Scenes from the Colonial Catwalk

through dislocation. There are meshes of ing, 175 ALR 193 [1998]) and industrially the authoritative and the quotidian, the manufactured woolen carpets “sacred” and the commercial, official and (Milpurrurru and Others v. Indofurn Pty. unofficial, culture and advertising, two Ltd. and Others, 30 IPR 209 [1994]). In forms of cultural specificity, and two sys- addition, there was a case that spoke to tems of meaning. Nevertheless, the ex- national identity and governmental re- hibition in which this and other appro- sponsibility issues when an artist sued priations of Maori forms appeared was in copyright for the unauthorized repro- a succès de scandale for Frizzell. He was duction of his work on the Australian vilified and championed, both. Impor- Bicentennial ten-dollar note (Yumbulul v. tantly, these positions did not simply Reserve Bank of Australia and Others, 21 split along racial lines, as the catalogue IPR 481 [1991]). While appropriating art- contained essays by Maori writers and a ists and the galleries that represent them few pakeha academics rose to the bite of might risk the opprobrium of some crit- the images (see Dick Frizzell “Tiki” 1992; ics, they have not, as yet, been sued for and compare with Te Awekotuku 1992). breach of copyright. Many commentators draw a distinc- In this context, an interesting legal tion between use of indigenous design skirmish that did not proceed to the in art and its use in commercial enter- courts occurred in New Zealand in 2000. prises. This is particularly true of the in- Auckland-resident Samoan artist Fatu stances where individuals or groups Feu’u threatened to bring an action have gone to court to try to affect some against New York-based pakeha artist protection of designs. In Australia, for Max Gimblett for infringement of a example, which has the richest case law “frangipani” design (Tangata Pasifika regarding cross-cultural appropriation, 2000). Feu’u states he uses it by permis- the instances that have occasioned liti- sion of his matai (chiefs),4 an authoriza- gation conspicuously have not involved tion that Gimblett lacks if, indeed, he is the appropriation of Aboriginal Austra- using the specific design as asserted. lian cultural heritage by non-Aboriginal There are important issues in this ex- artists for use in works of art, although ample of whether this represents a situ- this practice is widespread. There is, if ation of cross-cultural plundering or an you will, an invisible division that seems analysis based on pseudo-morphologi- to have separated a commercial use with cal analysis. It is noted here as a rare ex- high intellectual pretensions (the fine arts ample of the debate crossing what I sus- market) from more base and explicitly pect is a divide that characterizes core commercial exploitation. Hence, the assumptions about whether or not it is cases brought as a result of the unli- worth pursuing copyright infringement censed use of designs by contemporary cases in colonial-derived legal systems. Aboriginal artists include such items as Industrial and manufacturing sectors are tee-shirts (Bulun Bulun and Another v. R viable defendants, whereas cross-cul- & T Textiles Ltd.; Minister for Aboriginal tural appropriation based on Romantic and Torres Strait Islander Affairs, interven- notions of authorship is seldom litigated.

55 Peter Shand

That this (non-litigated) example is ex- end it is predicated on formalist assump- ceptional may be due to a number of rea- tions as to the recognition and meaning sons. For example, it could be a recogni- of cultural heritage. For example, the in- tion of the asymmetries of the relation- clusion of the koru as part of a general ship between intellectual property rights page in Owen Jones’ Grammar of Orna- and customary indigenous rights (the ment of 1868 betrays a reduction, isola- presumption that the case could not be tion, and re-designation of a culturally won or could only be won by adherence specific design. A more violent disloca- to Anglo-American codes discussed be- tion occurs in Immanuel Kant’s canoni- low). Alternatively, it may be because of cal text, The Critique of Judgement, from a specific though limited preparedness 1790. In the “Analytic of the Beautiful” not to intervene too strenuously in free he explicitly isolates the formal quality intellectual exchange and/or artistic de- of the koru, in moko (tattoo) in this case, velopment (an adoption, to an extent, of from its social and cultural significance Euro-American notions of authorship for Maori. He writes: “[a] figure might and creativity). be beautiful with all manner of flourishes At play behind many of these situa- and light but regular lines, as done by tions is the observation that responses the New Zealanders with their tattooing, vary according to political interpreta- were we dealing with anything but the tions of the images (and, perhaps, are figure of a human being” (Kant 1952, 73). unstable even then). What I might say is It is this association that prevents moko prescient criticism might seem censori- from assuming the status of pulchritudo ous forms of political correctness to you; vaga or free beauty in Kant’s scheme. The what you might regard as somewhat moko is considered because of what it naïve readings of cultural symbols I might mean if, and only if, it can be lifted might see as the potential of signs to off the person wearing it. The koru is in- overcome their original cultural contexts. teresting as a design feature but has no This is the direct consequence of a hy- meaning attached to it other than the bridizing of languages. The efficacy of declaration of its formal properties. these connections is important to the In New Zealand, some commentators claims of both appropriating non-indig- on appropriation have looked to Julia enous artists and designers and those Kristeva’s metaphor for language: “[ev- indigenous artists and designers who ery] text takes shape as a mosaic of cita- work in traditional or authentic meth- tions; every text is an absorption and ods—for these have as surely been af- transformation of other texts” (Kristeva fected by the contact of peoples as have 1969, 146; see, e.g., Bell 1989, 16). In do- their colonizing Others. ing so it seems to me that they ignore Appropriation as a mode of cultural two crucial issues. First, language is not engagement is dependent on an ability static (which is her point, in part) but is to separate a given object or design from also dependent on who is speaking and its cultural milieu for the purposes of its who is listening. In a dialogical system employment in a different one. To that such as authorized cultural appropria-

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tion this is extremely important. Sec- ngaro o te moa” (If the language is lost, ondly, the use of the mosaic metaphor is humanity will be lost, it will be as dead dependent upon the severing of lan- as the moa—an extinct large flightless guage from specific meaning. It is the bird) (Waitangi Tribunal 1986, ¶6.1.21 dominant assertion of the age that all and 3.1.4; from oral submissions made forms of cultural production occur by Sir James Henare). within a complex field of interaction, It is in light of this sense of the poten- quotation, and re-quotation. In respect tial for lost or erased meaning that an al- of this, to try to isolate the koru in any ternative position is sketched here. It way would stifle its ability to communi- looks to the retention of the philosophies, cate and participate in contemporary significations, knowledges, and strate- culture. This may be described as a post- gies of indigenous peoples as being the modern position, not least because of its key to any consideration of the cultural denial of truths or fixed meanings and expressions of their making. More im- its embracing of shifting and multiple portantly, the maintenance of control interpretations of all aspects of contem- over those expressions is presented as an porary culture. Whereas modernist ap- important site of resistance to colonial, propriation was essentially mimetic (at- imperial or, in recent years, global capi- tempting to represent physical and/or talist assaults. The principal reason for metaphysical truths distilled from non- this is founded on the idea that indig- Western practices), post-modern repro- enous peoples remain at risk to new and duction is semiotic, and so appropriation various forms of colonial violence— is argued to carry its own validity irre- physical, environmental, economic, and spective of the meanings of the original. epistemic. More importantly, cultural In this scheme, the koru is neither an resistance with respect to the arts is a original nor unique design but one means of retaining the strength and reso- caught within a complex series of tex- nance of original voices and avoiding co- tual relationships as in Kristeva’s mosaic option into a dominant cultural ethos. As metaphor. Frantz Fanon writes: The difficulty here is that it potentially risks the compromising of sure or pre- [every] colonized people—in other cise meaning within a specific linguistic words, every people in whose soul an and/or cultural milieu. While such an inferiority complex has been created experience may well square with that of by the death and burial of its local cultural originality—finds itself face Euro-American academics, it is not clear to face with the language of the civi- that the languages (linguistic, artistic, lizing nation; that is, with the culture symbolic) of indigenous peoples are so of the mother country. The colonized “cut loose.” To the contrary, language is is elevated above his jungle status in what sustains people. For Maori: “Ko te proportion to his adoption of the reo te mauri o te mana Maori” (The lan- mother country’s cultural standards. guage is the life force of mana Maori); (Fanon 1986, 18) “Ke ngaro te reo, ka ngaro taua, pera I ta

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In this way, the ongoing sense that colo- ity of languages which you will never nization is not an historical phase that get out of” (Derrida 1985, 122). Con- has passed, the effects of which are versely, Trinh Minh-Ha suggests that the known and finite, informs the arguments poorest translation is the one that tries mounted by proponents of this position. to erase from the original text its own This is a strategy of resistance founded resonances and makes the translation on the apprehension that the loss of spe- sound as if the original had been written cific cultural knowledge or means of ex- in the translator’s mother tongue.6 pression, or their being refigured in the At the heart of this is the question of dominant language of the colonizer, is whether the koru has anything to fear akin to a cultural death. In maintaining from its potential for translation into an essentialist position, advocates of this works of art or designs that are not those position often strike out against a form for which it had traditionally been used. of cultural genocide.5 The “formalist” and “quotational” posi- A resonant metaphor for the compet- tions noted here would suggest not, for ing claims sketched here is that of trans- its involvement in the works outside of lation. The central concepts that govern a customary frame allow it to speak of translations from one language to an- universal humanism, be appreciated for other are fidelity and license. These te- its own self, or reflect the shared cultural nets create an antagonistic but not irrec- dilemmas of the current age. The alter- oncilable tension. A translation too close native resists this sense of a collapsing to the individual meanings of words can view of everything necessarily being create a dull, pedestrian text, voided of available for translation. It focuses, in- any poetic significance or emotional reso- stead, on the specific social and political nance. Too liberal a translation and any climate of indigenous experiences, intended meanings can be obscured or which, although different, are founded lost. The genuine relationship of origi- on a shared experience of colonial vio- nal to translation, as Walter Benjamin lence. Lands, peoples, places, treasures, (1984a) sees it, is based on the transfor- and resources that have been looted dur- mation and renewal of the original rather ing the different phases of colonization than a replacement of it. Jacques Derrida suggest the need for a certain wariness develops this by responding to when confronted by a demand for intel- Benjamin’s notion that the original de- lectual freedom and for the availability mands to be translated, to be made over. of indigenous peoples’ knowledge to be Derrida argues that there is a necessary served up as the latest course in the glo- disassociation between the meaning and bal colonial banquet. Resistance to a the letter in an original text, a deconstructive model re-centers Maori “disschemination” named after the perspectives. This overcomes what Rose- Shems who constructed the Tower of mary Coombe gives the pertinent no- Babel: “[you] will not impose your mean- menclature “Representation without ing or your tongue, and I, God, there- Representation: Visibility Without Voice” fore oblige you to submit to the plural- (Coombe 1993, 272), the idea that with-

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out sufficient formal protection, indig- was assumed in this period of early capi- enous arts and cultures may be made talism and nascent industrialization that over in the mode of the dominant colo- society needed to move forward. Indi- nizing language and then made to speak viduals needed to be encouraged to as- in place of legitimate indigenous voices. sist in that development, and it was as- At the same time, it also centers indig- sumed that they would only act if they enous concepts in the discourse. In the were able to take the benefit of their in- case of Maori art, for example, it is cru- ventiveness and their creativity. This situ- cial that all work is a reflection of cul- ates early intellectual property legislation tural and spiritual values, all work is an and case law within the realm of an expression of human spirituality and emerging market economy. carries the essence of life or mauri. The historical timing of the develop- ment of intellectual property rights is a INDIGENOUS PEOPLES AND IN- pertinent element of the gaps noted TELLECTUAL PROPERTY RIGHTS above. The first English legislation, for The fundamental concern of intellectual example, was in 1709 and granted rights property rights in an Anglo-American to the author of books in a move to cir- system at the present time is to protect cumscribe the indiscriminate printing of the proprietary interests of identifiable texts without the author’s consent, a authors and/or owners of identifiable practice that was rife at the time. Impor- material works. It serves as a partner tantly, then, it develops as a result of an protection to the interests in property attempt to retain the authority of the ex- that are protected with respect to real and pression of knowledge for the ex- personal property. It speaks, then, of presser—it reveals a Foucauldian con- ownership in a way that affects exclu- nection between knowledge and power. sive or semi-exclusive rights to particu- At the same time, the Enlightenment’s lar things. In this way, the overall sys- philosophical focus on individualism tem of the law of property reflects a Car- and humanity’s power over nature co- tesian dualism, which is to say it makes incides with the growth of this set of clear a split between the body and mind rights. It also coincides with the escala- in respect of one’s property. This is re- tion of colonial activities by the European flected in the fact that one person might superpowers of the time, through to the own a physical object but another the introduction of an imperial phase of colo- intellectual property interests in that ob- nization after the Battle of the Nile in ject. The specific contribution of intellec- 1798. Later formalization of these rights tual property rights is that they protect also reveals a co-incidence with the eco- the expression of one’s ideas, the prod- nomic and political drives of Europe. The ucts of the mind, as it were. Importantly, Paris Convention of 1883 (the base inter- the governing philosophy of its codifi- national document for trademark protec- cation in the eighteenth century was a tion), for example, was signed during the focus on the desirability of progress. It Paris Exposition of that year, a marker

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of economic and imperial might (Patel Statement [Suva Statement] 1995). The 1996, 311-313). principal concepts named here are the relationship to land and an holistic Foundations of indigenous peoples’ worldview. Together, these reflect and critique: what intellectual property shape indigenous peoples’ concerns. lacks Specific expressions of culture in narratives, fashioned objects, and performances are not easily divisible. In raising some consistent features of in- Whereas Anglo-American law, for digenous peoples’ customary rights in example, might treat tangible cultural cultural heritage it is beholden on me to heritage differently from knowledge, make certain interjections by way of dis- indigenous peoples resist this separation claimer. The key concepts noted derive of aspects of their cultural expression from both specific tribal concepts of cus- because it does not conform to their sense tomary law and those of broader racial of the interconnectedness of things. groups such as Aboriginal Australian, There is no taxonomic division of First Nations, or Maori. It is necessary to intellectual or other areas as is the case state that these generalizations are in no with Eurocentric systems since the way intended to attempt to define indig- Enlightenment. Law, science, enous cultural heritage for indigenous biotechnology, culture, government, peoples. As Article 1.1 of the 1993 medicine, knowledge of the natural Mataatua Declaration states, “[in] the de- world, religion, performing arts, all are velopment of policies and practices, in- part of a matrix of mutually re-enforcing digenous peoples should: Define for systems of knowledge and ways of themselves their own intellectual and living. As a result, to separate out any cultural property.” Nevertheless, the one area of concern for specific and/or ideas that are stated are, for the most part, divergent treatment is to create an assumptions broadly held by indigenous artificial distinction. This can be peoples. This may be witnessed in their witnessed in the growing acceptance of appearance in international documents the term “cultural heritage” in place of of declared understanding between in- “cultural and intellectual property” in digenous peoples and in the documents the international arena (Blake 2000; Daes issued after indigenous peoples’ fora 1997; Janke 1998). (e.g., UN’s Draft Declaration on the Rights of Indigenous Peoples 1993; UN’s Draft Yet cultural heritage is split up into Principles and Guidelines for the Protection numerous different rights under a of the Heritage of Indigenous Peoples 1993; parallel number of different legislative Mataatua Declaration 1993; Julayinbul regimes. In New Zealand, for example, Statement on Indigenous Intellectual Prop- this can involve protective coverage erty Rights 1993; Final Statement of the Re- under the heads “cultural” and gional Consultation on Indigenous Peoples’ “intellectual” property. The former Knowledge and Intellectual Property Rights category includes the Antiquities Act, 1975; the Conservation Act, 1987; the

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Plant Varieties Rights Act, 1987; and the the position of Maori cultural heritage Resource Management Acts, 1991 and in its very widest sense and represents 1993. The latter includes the Copyright an attempt to elicit formal recognition of Act, 1994; the Designs Act, 1953; the Fair self-determination over cultural heritage Trading Act, 1986; the Patents Act, 1953; from a government body. Both the bill and the Trade Marks Act, 1953. Such a and the claim represent resistance by an collection of enactments might create the indigenous people to the divisionist and appearance of adequate coverage, but disempowering nature of legislative they do not, by and large, reflect regulation of their cultural heritage. specifically Maori concerns for cultural While the response of Maori might show heritage. that legal systems may change in order This, perhaps, is why there are two to accommodate alternate needs significant changes on the table in New (although this has yet to be proven), it is Zealand. The first is the Taonga Maori noticeable that both endeavors reject or Protection Bill, a piece of proposed sui at least side-step traditional intellectual generis legislation that is currently being property classifications. This is a strategy strenuously revised. The proposal seeks of disordering that illustrates the depth to provide a protective scheme for of indigenous antipathy for the principal cultural heritage under one act. effects of cultural heritage regulation. Significantly, in its original form the Bill This antipathy finds a parallel in reflected, almost clause for clause, the outsiders’ criticisms of the failure of principles outlined in the Mataatua copyright to accommodate the Declaration and would result in a particulars of indigenous perspectives. significant shift in the form, objectives, Indeed, copyright is commonly rejected and philosophy of indigenous cultural as the most unpalatable form of heritage protection. The name, “Taonga protection of indigenous heritage rights Maori,” for example, reflects the Maori available. For example, Erica-Irene Daes, conceptualization of taonga (treasures) Chairperson of the United Nations’ for cultural heritage. This is an inclusive Working Group on Indigenous term for both tangible and intangible Populations, declares existing forms of aspects of Maori culture; it would, for legal protection of intellectual property example, bring legislative protection for such as copyright to be “not only a traditionally woven garment into the inadequate . . . but inherently unsuitable” same arena as the Maori language and (Daes 1997, ¶32) to indigenous peoples’ principles of environmental needs. A communality of analysis holds management. The second major that Eurocentric systems of intellectual development in New Zealand is the property regulation fail to accommodate awaited findings of the Waitangi the unique relationship between Tribunal on the Wai.262 Matauranga indigenous peoples and their knowledge Maori and Taonga Claim currently systems (e.g., Coombe 1997; Janke 1998; before it. This revolutionary claim Johnson 1996; McDonald 1997; Tunney brought by Maori seeks a declaration on 1998; Wright 1996). Importantly, too,

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there has been registration of this lack in owner and is used for the purpose of the courts. In the “Carpets Case,” for extracting economic benefit—but in example, Justice von Doussa stated: terms of community and individual “[the] statutory remedies do not responsibility. Possessing a song, recognise the infringement of ownership story or medicinal knowledge carries with it certain responsibilities to show rights of the kind which reside under respect to, and maintain a reciprocal Aboriginal law in that traditional owners relationship with, the human beings, of the dreaming stories and the imagery animals, plants and places with such as is used in the artworks of the which the song, story or medicine is present applicants” (Milpurrurru and connected. For indigenous peoples, Others v. Indofurn Pty. Ltd. and Others, 30 heritage is a bundle of relationships, IPR 209, 239 [1994]). Such a failure rather than a bundle of economic includes the refusal to recognize and rights. The “object” has no meaning endorse the central fact of indigenous outside of the relationship, whether cultural heritage: that in its many forms it is a physical object such as a sacred site or ceremonial tool, or an it articulates and contributes to intangible such as a song or story indigenous identity, heritage, and the (Daes 1997, ¶26). relationship of different tribal and linguistic groups with the world. Instead Setting aside any issues of essentialism of being commodities owned by strategically adopted in Daes’ report, individuals produced for potential there are two conclusions to be drawn economic benefits (as is the presumption from this. First, indigenous “property” of the Anglo-American model), is not part of a Cartesian proprietary indigenous heritage registers scheme—a subject does not possess an relationship, survival, struggle, and, object as a sign of the subject’s most importantly, identity. domination of the object world. Secondly, and as a result of this, Property indigenous “property” is inalienable, Property is arguably the dominant focus unlike Eurocentric views of property of Eurocentric legal systems. The Anglo- (Moustakas 1989). Given the importance American notion of protecting against of the proprietary scheme for Anglo- unauthorized infringement, for example, American copyright and its delineation is a metaphorical extension of the notion of economic rights over aspects of of trespass of real property. Yet the same intellectual property, it is not surprising concept does not necessarily exist in all that there is no match with indigenous indigenous systems; certainly it does not concepts of heritage. assume central importance. As Daes articulates the issue: Material form In a legal sense, materiality remains a indigenous peoples do not view their fundamental presumption of a quality heritage in terms of property at all— that is, something which has an essential to art, as two English cases

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indicate. Lord Justice Lawton in materiality, which is a physical presence Merchandising Corporation of America Inc. only, not a physical presence over any v. Harpbond Ltd., for example, responds specific period of time. By the same token to the idea that make-up could be and despite what Lawton LJ. declares, analogous to a painting: make-up is a material expression of an idea once it is applied (the very term for it seemed to me fantastic . . . a painting putting one’s face on charts its distance must be on a surface of some kind. from an “idea”). As a result, it would The surface upon which the startling seem that a copyright focus on material make-up was put was Mr. Goddard’s form implies more than a desire for face and, if there were a painting, it must be the marks plus Mr. fixedness as a purely materialist concern; Goddard’s face. If the marks were it implies fixedness in the sense of taken off the face there cannot be a stability or permanence. painting. A painting is not an idea: it Two major problems result for is an object; and paint without a indigenous peoples with respect to this. surface is not a painting. (FSR 32, 46 First there are forms of heritage that, by [1983]) these decisions, will not attract protection. Maori performers, for Similarly, in Creation Records Ltd. v. News example, will paint designs, sometimes Group Newspapers Ltd., Justice Lloyd with specific tribal and/or familial refused the designation “sculpture” for significance, on their faces. Aboriginal a collection of disparate objects arranged Australians will on occasion have for a photographic session with the band designs on their bodies as an important Oasis on the grounds of it being part of particular ceremonies. At these temporary. Having declared he did not and other times, impermanent works regard the claim that the object might in will be created, earth paintings for fact be sculpture as “seriously arguable,” example, which last only as long as a Lloyd J. continues: particular ceremony or performance. Moreover, songs, dances, temporary [this] composition was intrinsically artistic works such as body designs, and ephemeral, or indeed less than ephemeral in the original sense of that earth paintings and artifacts do not exist word of living only for one day. This in isolation from one another but form existed for a few hours on the ground. an holistic milieu of the performance.In Its continued existence was to be in terms of materiality, designs on the body, the form of a photographic image. the performance itself, and any (EMLR 444, 450 [1997]) associated impermanent works fail a copyright test of material form. For The idea that a temporary work is indigenous peoples, however, there is somehow less of a work than one nothing to separate these aspects of intended to last for more than a day cultural heritage from the paintings, (apparently Lloyd J.’s standard term) linocuts, or sculptures of the successful stretches the normal understanding of copyright infringement cases brought by

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Aboriginal Australian artists. Protection for indigenous notions of Although untenable from a authorship or creativity is not customary rights perspective, material considered. This is because of three basic form is the normative position of Anglo- dissimilarities with the dominant model, American copyright, a condition closely presented here as questions. First, are allied with the proprietary focus of Euro- there indigenous “artists” as such? American law in general. What it ignores Secondly, how do they conceptualize in terms of indigenous peoples’ interests themselves and does that square with the is that the “things” that most warrant demands of authorship? Finally, what protection are often not physically happens to the indigenous artist when manifested. The ideas behind the works she stands in court? The significance of (performances, narratives, principles of these dissimilarities is that they reveal a design, the meanings of these, the secret central asymmetry with respect to the and/or sacred nature of these place of indigenous artists in relation to interwoven concerns) can be of greater authorship. and more lasting “value” to peoples. In “Artist” (or “author”) is not painting, the narratives and styles of necessarily an indigenous conception of works remain unprotected, for example. the role played by creative individuals. In the case of performances of oral At the outset, there are etymological traditions, Janke records the alarming difficulties with the very term. As First prospect that although there are Nations artists Lou-Ann Neel and minimum standard performers’ rights in Dianne Biin state: Australia: [as] with many Indigenous groups [performance] of Indigenous music, throughout the world, our respective dances and stories are not eligible for languages [of the Mamalillkala, copyright protection unless they are Da’naxda’xw, Ma’amtagila and original and recorded in material Kwagiulth peoples for Neel; and of form. Thus, under existing copyright the Tsilqhot’in people for Biin] have legislation, traditional custodians of no one-word for “art.” We also do not an important sacred dance or have a singular word for “artist.” ceremony may not be able to stop Instead, we have words and unauthorised performances of the phrases that describe individuals or dance. (Janke 1998, 56) groups of individuals as being knowledgeable or skilled in a Authorship particular area of creative works— professionals who are, for example, The subject of Anglo-American “knowledgeable in the way of songs” copyright is the individual author. In the (composers, singers) or context of art making, this often squares “knowledgeable in the legends and with the naïve and Romantic image of histories” (storytellers, painters, the lone artist struggling away in a garret, carvers, etc.). wrestling with creative dæmons. . . .

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While we would prefer to use a more relate the content of a work. Like St. suitable designation, for ease of Bonaventura in Woodmansee’s example, discussion we will use the terms “artist” neither Neel nor Biin acts alone. In a way, and “artistic” but offer a definition of our the process of authorization of own making to define artists as “Trained indigenous art-makers through practitioners and masters of the formal instruction and/or initiation is artistic and creative disciplines of our people.” analogous to the training of medieval In Kwakwala, we would say “Xa nax’wa artists through long periods of ni’nogad kotla’xees dlax-wa-tla-as” (“those apprenticeship in both methodologies of who are knowledgeable know where they art and the Word to which they were stand”). Many languages speak this same giving form. truth. (Neel and Biin 2000) This is not to say that individual By approaching the law as artists, indigenous artists are not granted and those who speak, sing, dance, make or have not found some satisfactory otherwise create indigenous cultural protection in copyright actions (the heritage are having to stand as Australian case law refutes such a translations of themselves. conclusion). Nevertheless, those Secondly, the assumption of self- appearances also see the interests of authorizing production underpins the those artists and the communities of Anglo-American conceptualization but which they are a part translated into indigenous artists manifestly do not interests that would exist were the share this experience. Their work may claimants non-indigenous. By this it may be subject to controls and they be that “equality before the law” results themselves are answerable to the people in an erasure of what may be a crucial for whom they speak. In parallel, Martha part of an artist’s identity and the reason Woodmansee contrasts individuated she might bring a claim: her indigeneity. authorial responsibility with a medieval European concept of authorship wherein Originality the author makes a contribution “as part Originality poses two difficulties for of an enterprise conceived collectively” indigenous peoples. The first relates to (Woodmansee 1994, 17). In the present whether or not indigenous cultural context, this suggests that for indigenous heritage, especially contemporary artists working with traditional content evocations of traditional narratives and/ and/or methodologies there is an or designs, for example, may be said to absence of what Michel Foucault terms be “original.” The second, significantly “the author function” (Foucault 1991). To more subtle problem, is more structural this end, the artist is not the determining in quality. It arises from affirmation of factor in the “value” or “significance” of the first issue. Rather than offer a positive a work nor in the way it is received. conclusion, I would contend that concern Rather, even artists of great skill may be regarding originality in indigenous appreciated for the way in which they cultural heritage illustrates a clear

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instance of the pervasive imbalance of whether works incorporating copyright in favor of the Euro-centric [traditional narratives] satisfied the conceptualization and the seductive ease requirement of originality so as to with which alternate systems or attract copyright protection. In the positions may be incorporated within it. present case that issue has not arisen, and by the end of the trial the For many years the single “originality” copyright ownership of the artists in difficulty for indigenous peoples’ each of the eight works was admitted. cultural practices arose with respect to Although the artworks follow the realization of known narratives or re- traditional Aboriginal form and are articulations of established designs— based on dreaming themes, each copying and reproduction sanctioned artwork is one of intricate detail and and moderated by a collective. It is complexity reflecting great skill and conceivable that any difficulty was based originality. (30 IPR 209, 216 [1994]) on one of two positions. One may have been the protectionist concern that Even in respect of traditional copyright regimes were so strict that they methodologies, works are found to be might not extend to “known” or original; it is enough that there has been “traditional” elements. An alternative some visible presence of the hand of an position is the fallacious notion that individual artist and the recognition by careful and exact repetition of images artist and community that she is (and histories, narratives, and responsible for a particular version of a performances, which remain narrative. In this respect, case law unprotected) was the result merely of appears to have accommodated slavish copying. This position conceives indigenous interests insofar as they are of indigenous cultures as synchronic, compatible with original artworks made with peoples doomed to repeat a by individual artists. Narratives do not diminishing range of known devices garner protection in and of themselves, (Talal Asad 1973; see also Freud 1913; only as “original” manifestations by Lévi-Strauss 1955). authors. Nevertheless, all appears well because “Aboriginal artworks,” by being The key decision dispelling the idea declared to satisfy an origination test of that the contemporary expression of originality, are not rendered ineligible for traditional Aboriginal Australian protection. cultural heritage might not be original is Milpurrurru and Others v. Indofurn Pty. Ltd.—the case of indigenous paintings Reproducibility copied onto industrially manufactured At this point, it is as well to identify what woolen carpets. In his decision von might be an ironic reflection of the status Doussa J. notes a series of texts such as of original and reproduction in the the Working Party Report that addressed context of non-indigenous legislation this concern and states that the problem pertaining to indigenous art and design. is: A number of commentators have focused on Walter Benjamin’s text “The

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Work of Art in the Age of Mechanical knowledge for exploitation will Reproduction” as a modern theoretical invariably register that normative rules source for a defense of the uniqueness, of copyright are inherently unable to the partiality of indigenous cultural respond to the requirements of that expressions. In the introduction to the authenticity. Indeed, these two points exhibition catalogue Copyrites: Aboriginal look as though they go hand in hand. Art in the Age of Reproductive Technologies, What is potentially ironic about such a for example, Vivien Johnson extends the link is that the security of the first point obvious reference to Benjamin in the title rests in large part on the notion of by opening with a quotation: “‘[the] originality, an issue that is, in fact, presence of the original is prerequisite to defended in particular forms by the very the concept of authenticity’” (Johnson system that is criticized in the second 1996, 3; see Benjamin 1984b, 220). The point. Originality in copyright is a quote is used to center a discussion about theoretical construct intended to the non-approved use of Aboriginal establish and defend the originating Australian art, how such practices author’s economic interest in the necessarily breach both intellectual products of her labor—it establishes an property and cultural integrity, and how original proprietary interest that the this relates to the distinct understanding author may then use to restrict copying. of authentic Aboriginal art. One of the “The presence of the original,” in this key observations raised in the essay is context original (indigenous) peoples that non-Aboriginal people do not and original (first) expressions linked to understand the particular auratic membership of that group, may, qualities of the things they copy and that likewise, presume a proprietary interest any reproduction should only progress and may well foreground that interest. from the position of informed consent. Coombe, usefully, has warned against To this end it repeats some of the the ease with which concepts such as conclusions reached in this article in the culture, authenticity, and identity may be articulation of interwoven concepts of posed as proprietary terms, wherein identity, authenticity, and the specific such arguments are “constructed upon attachment of indigenous the same philosophy of possessive epistemologies to particular forms of individualism that grounds our legal cultural expression. Johnson turns categories and historically supported Benjamin’s phrase to make her point: practices of colonial expropriation” “[the] presence of the Aboriginal is (Coombe 1997, 80). Both originality in prerequisite to the concept of copyright and (Ab)originality as authenticity” (Johnson 1996, 3). representative of indigenous interests in Interestingly, the same position that cultural heritage turn on the notion of defends the need for authenticity of origination—my right in my work stems expression as a means of dislodging the from the fact that the particular assumption that non-indigenous people expression of it originates with me as its may have access to certain objects or first author; indigenous rights in cultural

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systems and their expression stem from indigenous concepts has the potential to the fact that these expressions originate be inherently dislocating. with them as first peoples. At the same time, the inversion of this My concern in raising this is to position bolsters an a priori assumption register that there is at least a split in the of the superiority of indigenous heritage logic in how originality (as prerequisite when it is appropriated out of its cultural to authenticity and as a basis for refusing context. Translation in this instance reproducibility) operates in cultural-legal recognizes that, regardless of the terms. Those of us who do support the qualities of the derived work, it is notion that there ought to exist specific dependent on something that went sets of ethical and maybe legal criteria before it. Further, translation in copyright that inform and shape the ways in which terms can produce certain positive non-indigenous peoples encounter, outcomes. Indigenous authors will find research, and/or reproduce indigenous protection in that different legislative knowledge need to come to terms with systems state that originators retain what we think originality imputes. If by adaptation rights (of which translation originality we wish to invoke a sense of is one). Translation in the practical legal exclusiveness for some and exclusion for sense refers to cross-language others, then we must accept that this is a translation, and adaptation does not shared concept of that version of extend beyond literary, dramatic, or indigenous rights and copyright. This is musical works, which is a limited field not necessarily a bad thing in a practical admittedly. Nevertheless, the notion that sense, for it manages to speak the translations and adaptations require language of the colonizer in order to permission of copyright owners creates articulate an interest of the colonized and the inference that translations of cultural so may be heard. Yet herein lies a material do not take place in an open dilemma because, as Coombe goes on to environment without an interceding argue, this effects a normalizing of principle of authorization. Thus, the discourse, one, moreover, in the technical understanding of legal language of colonization. It repeats the translation rights may go some way to concern noted in this article about modifying the sense that translation is indigenous peoples (or in this context quite so free and open in broader cultural indigenous concepts) having to stand as terms. While translations may have their translations of themselves in order to be own originality or authenticity as heard, to be accepted, or to enter into translations (and this creates certain discourse. In the context of cultural intellectual property rights) they are expressions, the translated document, neither original nor authentic in the way artwork, or performance remains Johnson, say, uses Benjamin to enunciate dependent on a prior document, a conceptualizing of Aboriginality. artwork, or performance (hence it is I am not sure Benjamin on his own is unoriginal or inauthentic). This is why all that helpful, though. His discussion the very notion of translation of of the original’s aura’s dissipation by

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reproduction in the context of single as permissive—again, an author’s paintings is not necessarily borne out. prerogative in copyright). In this way it Indeed I may suggest that one is more looks to me increasingly less like a inclined to valorize the original when question of reproducibility framed encountering it because of prior exclusively by proprietary interests (legal familiarity with its look from territory) and more like one concerned reproductions—thousands of visitors a with articulation (ethical and behavioral day venerate the Mona Lisa, and cynics territory) (cf. Coombe 1997, 93). test their experience against its primacy in certain visual languages, but how Authenticity many actually see it? We perform its aura The notion of defining a specific set of by our recognition of it in any given conditions through which one might context—in the Louvre or on a chocolate define what is “authentic” Maori art or box lid. Moreover, Benjamin’s affirming language is the most serious discussion of film in his essay is, it should philosophical problem in this area. As an be noted, a discussion of a medium of example, the koru as a graphic is far from reproduction, what we see are projections a unique cultural phenomenon. A of prints. Is there no aura emanating from curvilinear form is widely used, and this projection, from this copy? I am spiral forms are present in the ancient unsure. When Johnson wittily interposes and contemporary art of many cultures: Aboriginality in a sentence on originality one can think of ancient Greek acanthus it looks like an affirmative gesture; it designs, decorative markings from the looks like a strategy whereby a form of Sepik, heraldic decorations surmounting primacy or prior claim is asserted. She’s shields, Lebanese iron work, Native fencing territory. My concern with this American spiral mounds, and is not that she looks to be staking Renaissance Italian voluté as an eclectic proprietary claims—Coombe’s concerns and random selection of the form in art.7 about the dominating logic of The artist, satirist, and theorist William proprietary analysis are certainly not a Hogarth’s treatise, Analysis of Beauty cunning means of dispossessing (1753), asserts (in chapter X) that most indigenous peoples of their heritage by elegant of lines is the serpentine line. His declaring property to be an ethically engraving of this involves a long gently bankrupt basis for analysis, thereby curving line with a twist at the end to rendering everything available for effect closure that has the same everybody, far from it. Rather, what fundamental features as the koru. In interests me is what is consequential specific cases of application and use, from the assertion of originality. This however, the particular demands of gambit can run from strategic makers, users, and materials render such essentialism (original as exclusive and generic forms dissimilar beyond any but exclusionary—like the original author’s the most casual of observations. rights) to a principle of respect, Moreover, confusion (or at least consultation, and authorization (original connection) of these forms based on

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morphological analysis does not of itself applications from leading to “the suggest protection is unwarranted. The production of un-Maori works of art” koru carries particular and specific (Page Rowe 1928, 60). connotations, which means it warrants More recently, Hirini Moko Mead has protection. As I see it, there is sufficient adopted an eight-point definitional distinction between the different graphic approach. Most of these are manifestations of the curvilinear pattern, unproblematic, but when first promoted and such a distinction is made plain at the Toioho ke Apiti Maori Art when the koru is used in connection with Conference at Massey University in 1996, associative or connotative meanings. three of the eight conditions elicited less The second problem of definition is than unanimous support. The idea that that it can seriously delimit notions of “[the] primary purpose of Maori art is art. The Maori Arts and Crafts Act of 1926 to give expression to the creative genius attempted to define Maori art. Sub- of Maori artists to satisfy Maori social, section 4.1 established learning political, cultural, and economic needs” institutions “for the study and practice (Mead 1997, 231) squares with an of the arts and crafts as known to and orthodox view of Maori art making but practised by the Maori people.” On the falls short of allowing for more face of it there is little problem with this, independent spirit within Maori visual but in relation to whakairo (carving), for artists. It runs the risk of introducing a example, there have been sweeping prescriptive element into Maori art. The changes in the way in which it has been succeeding condition was to note: articulated in the thousand years since “Maori art is social art that is created Maori first came to Aotearoa/New within a cultural and social environment, Zealand. Moreover, the principle of such that artists are in touch with their aesthetic faithfulness that is articulated tribal roots and with their people” (ibid.), in the Act is based on an analysis of one which is prescriptive. As with the recent house, Te Hau ki Turanga from 1842, bout of fisheries decisions, this approach made by Raharuhi Rukupo and others, of Mead’s effectively distinguishes which is now in Te Papa Tongarewa, The between urbanized Maori and rural Museum of New Zealand. The Maori and/or those who remain in implication is that the house is treated contact with their iwi or other tribally- as an idealized model of Maori artistry based group. The difficulty of this means rather than being a specific and excellent of identification is difficult to downplay, example of work made in the Poverty but it needs to be remembered that not Bay area in the middle of the nineteenth all urban and/or de-tribalized Maori century. The obvious problem with this have selected that state. For many it is is that it normalizes one institutional the result of decades of cultural style and determines it to be “authentic.” negativism and the drift to urban centers In the words of the Act, the purpose of for work which they and their families defining the content of a Maori School have engaged in. Mead’s point seems to of Art was to prevent new materials and try to avoid some of the painful

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sociological facts of twentieth century if indigenous systems, structures, and/ Maori experience. The next definitional or restrictions shape that dialogue), there moment suggests that “[changes] in is at least the first step in dislocating the Maori art are brought about by Maori assumed authority of the colonizer to artists who employ new technologies, exploit whatever she might choose in introduce new images, and recombine respect to her own, independent elements of Maori art in new and exciting intellectual creations. This discussion ways that are accepted by the Maori returns us to the question of people” (ibid.). The last clause of this is reproducibility and the attendant problematic, for just as a tourist public questions: Is the original diminished can endorse orthodoxies of style, so can through different forms of reproduction? a general Maori public. The risk here is Has the koru (in this example) anything of a mode of practice that is more often to fear from its potential for translation than not reactionary in quality. In terms into works of art or designs that are not of its application to a legislative those in which it had traditionally been approach, there is a very real danger of used? Is there something integral to it ensuring a regime that results in stasis that refuses the possibility of appropriate for Maori arts. reproduction?

THE COLONIAL CATWALK: Indigenous design and non-indigenous AUTHORITY, FREEDOM, AND fashion FASHION In lines marketed four years ago, the One of the general principles New Zealand swimwear manufacturer underpinning the Mataatua Declaration is Moontide included women’s suits made one of authorization. What it in part from material patterned with seeks to reverse is the sort of subject/ interlocking curvilinear koru designs object split that sees active colonizers (fig. 3). The managing director, Tony exploiting and utilizing the cultural Hart, and the firm’s designers developed heritage of passive colonizeds in a this swimwear line with a Maori manner that re-inscribes and thereby entrepreneur. Buddy Mikaere, a makes more powerful the speaking/ kaumatua (elder) in the local community, silencing, active/passive binarism of this negotiated the use of the koru motif. crude model. Active involvement, the According to Hart, two concerns seeking of permission, and, most governed the design element’s use: importantly, a desisting from any form commercial viability and cultural of involvement where permission is respect. In recognition of this dual aim, denied deflect the hegemonic privileges part of the royalty from sales goes to the of the singular speaking subject. In the Pirirakau hapu (sub-tribe) of the Ngati context of visual culture, where dialogue Ranginui people.8 Not surprisingly, between culturally divergent parties is when the line debuted at Sydney Fashion entered into and maintained (especially Week in 1998 it garnered considerable

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also been toppled as the prime determinants of exploitation and marketability. Not unlike the Air New Zealand marketers and designers during its re-branding, there is an interesting interplay between cultural sensitivity and commercial reality—indeed, I would argue it is more finely balanced in this case because the issues at stake have been openly and frankly addressed by the company. At any rate, the independent designer and manufacturer are supposedly held accountable for the manner in which the indigenous design module is employed. An obvious comparison may be made with the unauthorized use of indigenous Pacific and Maori graphic design in Paco Rabanne’s haute couture line from January 1998 and Jean-Paul Gaultier’s Spring/Summer 2000 lines and perfume bottling. In the former, the use of shiny black fabric cut in deliberate echo of koru design, high-cut at the hips, Figure 3: Moontide Swimwear, Jewel 3 piece and barely covering the breasts and coming Willow from promotional brochure 1999/2000. up to the face as a mask-like accouterment, plays with a close press interest for its apparently ethical alignment of exotic and erotic spectacle. handling of indigenous interests. The costume registers with some level What this example represents is a of equivalence two primary sources and discrete arrangement between two effects. First, the erotic allure for some parties: the manufacturer and the Europeans that moko holds—think of indigenous entrepreneur acting on the attraction of European seamen for behalf of a tribal group with direct tattooed Polynesian belles. Secondly, the responsibility to that group. At first appeal of sexually assured and/or glance it would seem that any absolute aggressive clothing such as that sense of intellectual or creative freedom associated with domination and/or in the manner that dominates Euro- sado-masochistic sexual practices— American discourse on art and design think dominatrices of sex clubs or of has been sublimated to some degree of popular culture such as Catwoman from duty or responsibility. More remarkably, Batman. In combination these suggest a perhaps, commercial imperatives have sexual frisson that interrogates and

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extends that commonly held to be This may typify the notion of the present in “the little black dress.” In this knowing Gaultier as a leading nominally example, the dense black of the garment post-modern designer. Not only does he oscillates with the flesh of the model in register the sort of pliant sexuality that an almost fort/da manner that can serve Euro-Americans continue to dream is the to heighten desire. Like the body of the condition of the Pacific but he does so Polynesian woman for non-travelers, the by utilizing the key high art formulation body of the model for fashion pundits of this presupposition—Gauguin’s Noa or magazine grazers is an exotic/erotic Noa woodcuts. The images and the fantasy figure. The “tattoo” marks journal of the same name are heighten the experience and potentially synonymous with the sexual and artistic suggest a libidinous puncturing of the freedom Gauguin maintained he found flesh in a manner of attraction and in the numerous islands of the Tahiti repulsion that has a strange echo of group where he lived between 1891 and Kant’s discussion. One may stand this 1903. They establish his sense of a rich interpretation of koru-derived design and magical Otherness to the “filthy next to Neich’s discussion of the Europe” he had escaped. In addition to originating form to chart the level of these woodcuts, Gaultier incorporated dissimilarity. At the same time, however, the profile self-portrait of Gauguin and there is not necessarily an attendant the “PGO” signature he developed. In sense of indecency or inappropriateness the lightness of the fabric and the sense on the part of every critic. Much as older of the fashion season to which they relate, and/or more conservative people might Gaultier imbues a sense of a similar shy from or actively regard as wrong the dreamy other-worldliness of the Tahiti body additionally sexualized by the use of popular European imagination. To be of the koru, younger and/or more fair, this is endorsed by the local tourist fashion-conscious or modish types might trade—soft, smiling bodies are more find humor or absurdity in the use. encouraging of potential tourist dollars The Gaultier lines and marketing than the nuclear test sites that strategies are somewhat differently characterize a crucial aspect of the French inflected. Like Rabanne, Gaultier has a colonization of Polynesia. reputation in both the fashion and pop To the Gauguin mix Gaultier culture industries for employing a introduces the image of a Maori warrior knowing and often humorous sexiness with ta moko—not unlike that of in his designs. To that extent, the Frizzell’s image. Clearly there is the sort diaphanous printed fabrics of his shirts of non-specific geography that and sarongs may play a similar peek-a- characterizes artistic appropriation of boo game. At the same time, the sources indigenous cultural heritage, wherein for his quotation are wider than the precise meanings are evaded in Rabanne’s; for these lines he search for a more generalized and appropriated images by Gauguin as well imagined locale. To an extent, this place as direct images of Maori use of the koru. is like to an imagined land, perhaps a

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nave nave fenua (fragrant land) to utilize Fashion in the field the term Gauguin coined. In this respect, There is, too, a local variant on this there is a shift from a specific (often problem. For many years the contested) location that one could align Christchurch-based sports apparel with a sense of the real to the realm of manufacturer Canterbury of New the imaginary as figured by the Zealand had a contract for supply with designer’s creative inventiveness and the New Zealand Rugby Football Union. savoir faire. Certainly the moko in the Prior to the 1999 Rugby World Cup held marketing campaigns register some in Britain and France, however, that degree of “Maoriness” but, at the same contract was not renewed and the time, are entirely in keeping with what NZRFU entered into a deal with the “Gaultierness” has come to represent in global sporting goods manufacturer, fashion—the conflation of sexiness, Adidas. Importantly, both companies “bad-boyness,” and inventiveness that have subsequently used Maori design in are the hallmarks of his style are present order to further product visibility and/ in equal measure here. or desirability. Still, there are other problems. These Canterbury has produced a new are most notable in the men’s swimwear range of rugby boots, launched in of the Gaultier line, where, depending London in 2001 and released on the New on the cut of the fabric, the warrior’s face Zealand market in 2002. The promotion with ta moko is repeatedly situated on of these products suggests that there the ass. Whilst this might contain a sense have been important modifications to the of general insult to non-Maori it is of existing design, especially in relation to specific offense within Maori culture, the soles of the boots and the placement with an entirely inappropriate confusion of sprigs. Of more importance here is the of the relative states of tapu (the head, look that has been generated in and the head of a tattooed person of rank association with the new product and the and mana in this case) and noa (the nomenclatures associated with the bottom). Things tapu and things noa are different examples within the line. Three to be separated. One ought not to sit on of the eight new boot designs incorporate a table that will take food, for example. explicit koru-based designs in the form Hence, to place a representation of the of differently colored leather decoration part of a person that is most important, on the outside of the boot. These were most sacred if you will (and one that designed by a Maori designer and carver, shows the status of the person through Riki Manuel. The energy of the forms, the wearing of the moko), where it will perhaps even an intimation of wind or be sat on is, in Maori terms, a grave movement, has been carried over into the matter. It is a factor that does not seem cosmetic features of the boot (fig. 4). to even enter into the ken of a blithe spirit These come to function as positive of contemporary fashion. connotational meanings for rugby players. At the same time, there may be a direct appeal to a nationalistic spirit

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within the local market or an exoticness generic use. This is an important concern or recognition of the formal appeal of the in the face of global marketing, and motif internationally. The company’s several examples have already caused involvement with an indigenous consternation.11 Outside of the designer looks to bolster the trademarking issue (which Canterbury appropriateness of its use and, has stated it will not seek), there are furthermore, there is no intention by the residual concerns regarding the tapu/ company to assert any claim of noa disposition of having words such as ownership over the designs or words Rangatira, in particular, for a range of used (acc. to the Sunday Star Times, 4 Nov. footwear. The notion of stepping over or 2001). on someone of rank is culturally offensive. Hence there is a distinct tension in the naming of the product between a desire to capitalize on the positive attributes of status but, at the same time, significant questions as to the neutrality of doing so. Eighteen months prior to the Canterbury launch, during the latter stages of the 1999 Rugby World Cup, Adidas’ campaign included the image of a Maori warrior with moko filling up the billboard, page, or other site of Figure 4: Canterbury of New Zealand, Moko rugby advertisement, the company logo placed boot, 2001. discreetly underneath. Presumably the campaign sought to connect the New Zealand All Black’s reputation as rugby More problematic is the incorporation players of high caliber with general of words in the boot promotion. The associations of strength, energy, and eight names given to the range are as vitality that may be set alongside follows (the translations are the author’s Polynesian warriors. Implicit in this, too, own): Rangatira (chiefly person); Tane- may be a certain sexualization of the Toa (champion);9 kaha (strength); whetu powerful, aggressive indigene. In terms (star); moko (tattoo); toa (warrior); hiko of the issues raised in this section, the (flash, zigzag, shine; all qualities of the moko on the model pulls together good rugby player); and haka (fierce markers of reputation, exoticism, chanting dance)10 . There are two masculinity, physicality, and sexuality problems in this. One is the potential for and markets these as the associated the trademarking of Maori words— values of the brand. This may work well which could amount to a ring-fencing of internationally or locally, for that matter. the language when employed overseas Although, in the latter context, it is the where the words cannot be said to have habit of many rugby union and rugby

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league fans, both Maori and non-Maori, not mean this to be a question that results similarly to paint moko on their faces in in disenfranchisement or alienation of support of their local or representative decision-making from indigenous teams, the campaign’s “exoticism” peoples. Nevertheless, there remain indices might not be so strongly felt open questions as to the ability and/or outside of Europe. The others, however, advisability within Maori custom for remain, for the most part, intact. individuals to assume that they may The Moontide lines look to come out authorize the use of designs that may of these comparisons in a positive light, more properly be considered the cultural mostly due to the consultative process heritage of the collective. Te Rangitu that was used prior to and during the Netana working on Robbie Williams in manufacture of successive season’s lines. a tattoo studio in Amsterdam may carry Perhaps, too, there is a similar hint of with him the authorization of his allure and location in the use of the koru teachers and/or his relatives, but he will, designs, and this may also speak to the inevitably, have to make sole judgment development of a specific clientele—in calls on whether or not to work on this case New Zealand women who particular clients. The distance of enjoy supporting local industry and Amsterdam from Aotearoa/New wearing clothes that disport that Zealand (almost the very opposite end enjoyment. Canterbury would seem to of the earth) may suggest a sense of have the same market for rugby players isolation that is as much cultural as of either gender. Nevertheless, there geographical. In place of this gap, Netana remain questions regarding the may assume a self-authorizing position appropriateness of the authorization of that bears little or no connection to those this design for this purpose. In the case who trained him or, in a broader sense, of a scanty bathing costume, a similar whose designs he copies and interprets. divide between conservative and more Nor is there consensus regarding the modern morality may be imputed appropriateness of the tattoo Williams here—certainly not everyone who sees now sports. The designer may speak of these images is unconcerned by them. the specific story he designed for his The presumption of the consultative client using his stylistic signature, but this process, though, mitigates any potential becomes problematic in terms of the discomfort inasmuch as there is the relationship between his own authorial stated position that this use has been signature in the sense of an individual authorized. Thus the ability to question subject-author and the signature of the or interrogate that use with respect to people who would seek to control its some sort of indigenous moral disposition and dispersal. To this end, perspective is seemingly curtailed. some Maori question the What this introduces is a more serious appropriateness of Williams wearing problem at the heart of the authorization what is a mark of belonging and, issue. That is to ask: “who may authorize moreover, of status when he clearly lacks and to what end?” I should say that I do the former and, to some, lacks sufficient

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mana to boot. This becomes more what economic interests they have from complicated when the factor of unsanctioned exploitation or some other international recognition is added to the form of unfair competition. The irony discussion. The issue here is whether here is that this could conceivably result mere visibility (for those who are in a delineation of intellectual property skeptical of the moko’s appropriateness) rights, the determination of which is can offset what might be seen as dependent on the action of the courts.12 dislocation from or harm to the specific While it is certainly a positive example cultural construct in which moko holds in the immediate case at hand, and a a meaning other than mere fashion- useful model for artists and commercial credibility. interests, the negotiated agreement is At the same time authorization leaves certainly not a panacea for the difficulties open concerns that might be raised about of reconciling indigenous interests with the ability of groups such as tribes or sub- differing modes of cultural tribes independently to sanction the use appropriation and the potential of a motif or design module or to register intervention of intellectual property an interest in it as this might exclude both laws. indigenous and non-indigenous further use. In the case of Moontide, for example, Labels, authorization, and authenticity the exertion of an intellectual property Since February 2002, a bureaucratic interest in the fabric design, say, could mechanism is available that might be exercised against a “passing off” strengthen the elements of authorization, swimsuit by an unscrupulous, declaration of that condition, and any indigenous copier manufacturer; even if resultant positioning of products in the the manufacturer claimed a general right market that for the moment are covered to that use by customary practice, for by Moontide’s arrangement with the example. It may be that the quality of Ngati Ranginui sub-tribe. Artists and negotiation that initiated the Moontide manufacturers now have recourse to collaboration might prevail, but it is also apply a label of cultural authenticity to important that one registers current their works. Toi Iho, the “Maori Made economic realities and their relationship Mark,” parallels developments in with some indigenous peoples’ goals, Australia (the “Label of Authenticity” most notably self-determination. developed by Australia Council, the Economic exclusion and resultant Aboriginal and Torres Strait Islander disadvantage are part of the colonial Commission, and the National experience for indigenous peoples. In the Indigenous Arts Advocacy Association), move to an assertion of rights of self- First Nations, Canadian Provinces, and determination, economics is an US States (the New Mexico Indian Arts important factor—so important as to and Crafts Protection Law, 1988, for raise the possibility that a capitalist mode example). of competition might be used by The drive for the Aboriginal different indigenous groups to protect

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Australian mark came from the as well as individual indigenous artists. considerable exploitation of indigenous Importantly, it would not, as Kathryn design within the tourist industry in Wells puts it, “be a measure for what is Australia. These examples of passing off ‘real’ in modern indigenous Australian (or rip-offs, to use the plain words of the culture” (Wells 1996, 38); rather, it is report into the matter) are largely focused on the commercial end of the art unregulated. Unsuspecting tourists may market. To this end it parallels assume the designs on consumer developments in North America. The products to have been knowingly made New Mexico Law, for example: for that purpose by indigenous artists, perhaps even a substantial economic makes it a duty of anyone who is benefit accruing to them, but there is no showing or selling Indian arts and guarantee of the veracity of such an crafts to inquire into the origin of assumption. To the casual eye, one tee- objects to determine a) if the maker was an Indian as defined by tribal shirt, for example, might look much like enrolment or certificate of Indian another, but to the indigenous producer blood, b) if the object is hand made there may well have been specific and or machine made, and c) if materials deliberate limitations placed on the are authentic (naturalness) or semi- iconography applied to any design, and processed. If the item can meet this profits may be serving indigenous test, then it can be labeled as an communities. Marianna Annas, one of authentic, Indian, hand made piece. the architects of the Australian proposal, (Greaves 1994, 47) sees it: The central focus of both examples given as a means of giving Indigenous here is the identity of the author. people a marketing advantage in an Although it may be focused on a environment where there is an collective or tribal identity (a sense of increasing number of cultural belonging to a group), the authorial focus products which are “Indigenous” in parallels the similar presumption of an appearance, but in fact of non- author-centric intellectual property Indigenous origin. The object of the regime. There are important flow-on Authenticity labeling system is to assist consumers in identifying benefits from the Australian mark, and authentic cultural products, and the New Mexico regulation includes thereby improve the economic additional conditions of process and benefits flowing to Indigenous people material, but these bolster the central from the commercial use of their concern of identification of “authentic” cultures. (Annas 1997, 4) makers. The New Zealand mark goes a step It has the additional advantage of further, even than the New Mexico Law, helping to regulate the type of imagery because it will serve two goals. First, it that is reproduced, which will be of serves what looks like the key objective importance to indigenous communities of authenticating marks because it is a

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mark denoting indigenous authenticity. hidden question as to what Maori To be eligible to utilize the mark, cultural products are—what they purveyors of goods will need to be able involve, how they may be recognized. to prove their ethnic identity as Maori. Mead’s analysis of this question, “What This will then result in one of three levels is Maori Art?” (1997), has been noted of demarcation: the Toi Iho Maori Made above and reminds one that a number Mark; the Toi Iho Mainly Maori Mark; of competing problems remain to be and the Toi Iho Maori Co-production addressed. It is questionable whether a Mark. These indicate that ethnic descent governmental bureaucracy is the is of central importance to eligibility but appropriate forum in which to answer is not exclusive—non-Maori may be part such questions, even if it is made up of a of an enterprise awarded the second two panel of indigenous experts. The specter of these three marks, but even here there of an overly deterministic approach must be a level of Maori involvement looms over the horizon, although it is too that imputes control or leadership. soon in the life of the Toi Iho Mark to be Secondly, it is a quality mark. A able to make any concrete observations regulating body of experts in different regarding its operation. fields will have the mandate to What is pertinent to the examples at determine whether or not an applicant’s hand is that the Maori Co-Production product is up to the mark, as it were. This Mark is available to enterprises where qualitative assessment factor has been Maori are working with non-Maori and one of the most controversial aspects of where the process has been significantly the consultative meetings that Te Waka guided by Maori concerns. On the face Toi engaged in to promote the idea of the of it, Moontide or Canterbury might be Maori Made Mark. The principal eligible for such a mark because of the problem with the quality aspect of the companies’ engagement of Maori mark is that it does not match the criteria designers. Moreover, if international that are more generally applicable to companies were to behave in a similar marks of quality. The International fashion, they too could meet the criteria Woolmark, for example, indicates that for having the mark attached. Success in products bearing the mark are 100% gaining it would give the product the wool—that is to say it is a mark advantage of a degree of official descriptive of material characteristics. To endorsement of the overall project. This place a quality mark on cultural would seem unlikely to result in short- expression, however, is not to avoid term competitive advantage in the imputations of value-judgements being international market and so looks to be made. Moreover, it seems to posit a more focused on the local and tourist markets. difficult and controversial question in Nevertheless, the mark is being that in this context it asks the members promoted at a time of increasing of the registration board to determine awareness of the complex issues of what is a quality Maori cultural product. intellectual property and at a time when Attached to the question of quality is a some would argue there is a new growth

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market in ethical products. It may be that visitors are told on their tickets “we don’t the confluence of indigenous marks and climb,” in reference to the conflict a possible increase in corporate between Anangu respectfulness of the awareness of the issues involved may sacred site and the tourist practice of create an environment for change. scrambling over it. They are further There remain stings to this tail, asked not to take stones of soil away with however. The effectiveness of such labels them. Both of these “requests” are in the market is dependent on their repeatedly ignored by visitors (although visibility to and recognition by target there is a curious new feature in the groups. The Aboriginal Label of information area with the display of Authenticity, although currently being letters from previous visitors apologizing used by some artists and manufacturers, for and returning stone and soil they had is all but absent in such centers of the removed). Australian Aboriginal art trade as Alice The second level is effectively one of Springs. Indeed, the first time I saw the self-education and a will to act ethically. mark myself was at a presentation given There is, for example, a thriving trade in by Terri Janke in July 2002—and this was didgeridoos in Alice Springs. Many of immediately upon my return from a trip these bear labels by the manufacturers to Alice Springs. Without take-up by stating the product to be “authentic.” In those engaged in the market there is little so doing, they refer to a list of criteria hope that the mark may sustain, let alone that pertain to the material develop, “ethical tourism.” Further, characteristics—that it is of native timber, tourists have to want to change and eaten-out by termites, has a bee’s-wax conflicting examples from the Australian mouthpiece, is hand-painted, and so desert make this want seem fitfully forth. These confirm the authenticity and observed, at best. quality of the instrument qua object but There are two levels to such take-up. elide other “authenticities” and One is to respond positively to stated “qualities.” Not only do the objects indigenous peoples’ positions. Uluru, the feature designs based on Aboriginal iconic red rock in the Central Desert, is models that are neither painted nor part of the Uluru – Kata Tjuta National sanctioned by Aboriginal people, but the Park, itself a World Heritage site listed didgeridoo is not an authentic cultural with UNESCO. Management of the Park item for the Alice Springs or Central is jointly the responsibility of the Uluru Desert areas, coming, as it does, from – Kata Tjuta Board of Management (on further north. Still, they are purchased which sit a majority of Aboriginal and may turn up as part of the student/ persons) and Parks Australia, both hippie/New Age milieux of Covent operating under methods governed by Garden, Haight-Ashbury, Toronto’s Tjukurpa, Anangu Law—Anangu being Queen Street, or the pedestrian mall in the traditional owners of the land. (Uluru Frankfurt-am-Main, played by blonde- – Kata Tjuta Board of Management 2000). dreadlocked “alternative lifestylers.” As part of that management process, Authentic objects, after a fashion

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perhaps, but authentic cultural objects? it’s not a quality garment), qualitative My concern here is not with a rigid assessment of design is fraught with prescription of who may or who may not difficulties. Even at this point there is an play the didgeridoo; rather, I simply assumption that any assessment of the want to register that assumed affinities form of the design may be separated or simplistic takes on cultural from its function—a tension that is of universalism seem mostly to square with long standing in the fine arts and design. one party—the one clutching the tourist Whilst the process of negotiation and dollar. authorization might be above reproach, Similar issues of take-up and it remains likely that some individuals manufacturers’ subtle evasions of may dismiss the scant costume on “authenticity” will, doubtless, present cultural and/or aesthetic grounds, themselves to the administrators of the whereas others will endorse it. Is a Maori Made Mark. At the same time, an swimsuit with this pattern on it additional issue emerges from the authentic? appropriate? customary? coverage of the mark. Even with a colonizing? debased? By taking the fabric population that is as urbanized and in design of the line out of a discrete some cases as estranged from their tribal arrangement (which, to an extent, roots as the Maori population, protects it from searching analysis and authentication of genetic ethnicity is scrutiny as to its relationship with relatively straight-forward. Individuals indigenous cultural heritage), large and can recite genealogy or, where they have complex questions concerning lost this knowledge, their right to be engagement, appropriation, creation, declared a Maori producer can be and regulation emerge to trouble those endorsed by individual kaumatua of us who consider the issues presented (elder) or by the Justice Department here. (through birth certificates). Quality, on the other hand, could well become an CONCLUSION extremely vexatious question. In the case As noted in the introduction, this article of the koru on swimwear, for example, is largely declaratory in intention. It is it is certainly plausible that individuals motivated by the observation that what on boards determining such matters will might already be a certain antipathy be able to find an equivalent of Kant’s between art (as a practice of creative pulchritudo vaga with respect to applied freedom) and its putative other, law designs. Similarly, the cultural mores of (with a focus on the establishment and individual iwi may be sufficiently maintenance of order), is rendered divergent to suggest an incipient form exponentially more complex by the of cultural relativism in an example such introduction of indigenous rights in as this one. Quality is inherently mutable, cultural heritage and any attempt to and although it may achieve levels of accommodate indigenous peoples’ certainty with respect to product finish worldviews. It does not propose any (if the swimsuit falls apart at the beach radical solution or program of action

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with respect to what I believe are assume priority? The position taken in fundamental asymmetries between this article is to affirm that indigenous intellectual property rights as they are peoples may wish to assert specific currently theorized and how they might interests and this ought to be respected be developed in order better to and supported. What is not quite so accommodate indigenous peoples’ certain, however, is whether that priority interests. This should not, however, be (first, preferred) derives from any sense taken as betraying any serious degree of of the prior (before, original) status of ambivalence or lack of enthusiasm for indigenes. The prioritization of large-scale solutions such as are indigenous interests in the context of this discussed at international governmental discussion looks increasingly like the (initiatives such as the UN Draft Principles adoption of a strategic position. It and Guidelines for the Protection of the registers that there may be different Heritage of Indigenous Peoples, 1993) and conceptions of art and law in terms of non-governmental (the Mataatua indigenous and non-indigenous systems Declaration, for example), municipal, and and posits some of the situations in local levels. Indeed, a comprehensive which and reasons why the indigenous revision of international intellectual ought to be preferred. Moreover, it is property agreements and/or a new suspicious of the capacity for one system convention specifically targeted at concerning reproducibility to be realizing indigenous peoples’ aspirations determinative in cross-cultural contexts, in the area may be the most profoundly especially when it is predicated on a significant long-term goal for intellectual dislocation of precepts of cultural property regulation. In nominally post- identification and expression. colonial nations, municipal programs of In light of this and without similar type are urgently needed in order repudiating any sense of long-term to redress the imbalances of the past and engagement with the issues raised, create an equitable platform from which discrete and specific examples, such as to move forward. Nevertheless, such that afforded by Moontide, offer goals are predominantly long-term glimpses into the possibilities and objectives and the vicissitudes of political problems of how to manage these issues power mean it is unlikely that there will in the present time. They are, be any comprehensive reform in the refreshingly, “real world” examples, short- to medium-term. ways in which essentially positivist There is a similar potential for attitudes to use and re-use can generate despondency with respect to behavioral working solutions. While the change. First, the question of the manufacturing industry is hardly an management of reproduction of innocent in the global economy, indigenous cultural heritage needs to be moments of resistance to or at least addressed. If there are competing (or at partial evasion of the dominant least divergent) interests and presumptions of that system are understandings, are there some that interesting. They are, moreover,

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moments where we are forced to be self- more complex (more appropriate? more reflexive about our roles, not only as intellectual? more valid?) arguments that designers and/or academics but also as eschew the apparent certainty and fixed- consumers. ness of essential claims. While this may be so, it may also be the case that in crying “essentialist” one seeks to subordinate and render ineffective both the specific claims and the underlying position of the argu- ment or assertion so labelled. Put this way, Notes it can come to look like a tactic of discount- I would like here to thank: Valdimar ing contrary positions—not, I hasten to Hafstein for his subtle and generous edit- add, counter-examples or alternative fac- ing of this piece and for his forebearance; tual situations, but contrary positions that and Tara Winters for her technical support. might derive from a worldview that is ut- 1 The number of rangatira (chiefs) who terly different from the dominant, nomi- signed Te Tiriti o Waitangi by drawing their nally Euro-American one. It is plausible that in this clash of positions (assumptions? moko as their mark is indicative of this. presumptions?) the dismissal of alternative 2 Air New Zealand returned to 86% state (read “essentialist”) worldviews acts as a ownership in September 2001 following a screen to what is really going on—the re- government bailout. assertion of a dominant position that, pre- 3 Gauguin is simply the most significant sumably, is founded on core assumptions artist in this context. Naming him here is (presumptions? essential positions?) such not to claim that he was the first artist to as the neo-liberal intellectual tradition of engage in cross-cultural appropriation, as Euro-American academies. At the same this is a practice that can be noted between time, however, it is true that essentialism even ancient trading nations. What is dif- can also be a screen, a screen that freezes ferent about his enterprise, however, is that the multiple and changing worlds of those he characterized his successive flights from brought together under its label. Maori, civilized Europe as an attempt to get in with respect of this article, is a generic term touch with the primitive within. As a re- that cannot convey the range of positions sult of that he may well represent the first that best express the individuals who make systematic appropriation of non-European up different tribal and non-tribal groups. philosophies, narratives, and visual cul- It is impossible to state that Maori speak tural expressions to serve a specific Euro- as one, and, to an extent, it is difficult to pean aesthetic philosophy, in this case argue that there is such a thing as a Maori worldview (particularly for non-Maori). synthetism. Nevertheless, and this is significant even 4 Fatu Feu’u. Interview by author, if it is essentialist, Maori do in general claim Auckland, March 1992. an engagement with the world that is 5 If you would permit an observation re- sourced from a recognition, for them, of the garding essentialism, which for some has essential life-force of all living things, become something of a bête noir of cross- mauri. For many Maori, certainly all who cultural theory. There is an inherent risk in identify culturally as Maori, understand- the blanket critique of essentialist positions ings or beliefs such as this underpin what that they are, inevitably, estranged from the it means to be Maori, as much in the con-

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temporary world as in the past. To this end, this game. So far, the results have been very and as Leonie Pihama has asked, what is interesting indeed, with Lego now to be feared of such an essence that it committing itself to adopting an ethical should be decried and marginalized under stance with respect to such appropriation the negative label “essentialist”? (the point in its products. was raised in an address to the Indigenous 12 This has been the case in the disposition Art and Heritage Conference, July 2002, at of fishing assets among Maori, for example. Massey University, Palmerston North). In the cases that were litigated, the Privy 6 Trinh Minh-Ha, discussion following a Council in London (the final authority in showing of Shoot for the Contents, 21 Au- the New Zealand legal system) was gust 1993, at Auckland City Art Gallery required to define what an iwi was for the Auditorium. purposes of settlement. This, at the very 7 Leonard Bell (1989) lists examples of least, is a remarkably ironic situation where koru-type imagery in other cultures; his an establishment of a former colonial order intention, in part, is to de-center the is required and empowered to tell contemporary Maori what one of the key meaning of the koru for Walter’s work. determinants of Maori identity is. 8 Tony Hart. Interview by author, Auckland, November 1998; see also Works Cited Moontide press release, 1998. 9 Tane means male and toa warrior, which, Annas, Marianna. 1997. The Label of in this combination, is evocative of the Authenticity: A Certification champion as opposed to the warrior as Trade Mark for Goods and such. Services of Indigenous Origin. 10 Haka are performed by many sporting Aboriginal Law Bulletin 90:4-8 teams prior to a match or in celebration of Asad, Talal. 1973. Anthropology and the a win as well as in cultural life more generally. The most well-known Colonial Encounter. London: internationally is Te Rauparaha’s haka of Ithaca Press. the nineteenth century that precedes All Te Awekotuku, Ngahuia. 1986. Blacks games. Interview by Elizabeth 11 The most significant of these has been Eastmond and Priscilla Pitts. the settlement of a dispute over the use of Antic 1:44-55. words in the Maori lexicon by the Danish Te Awekotuku, Ngahuia. 1992. children’s toy manufacturer Lego. The Interview by Peter Shand. company had developed a computer game, Stamp Magazine 37:24. Bionicle, where characters with names such Barthes, Roland. 1967. Degree Zero and as Toa, Whenua (land), Pohatu (stone), and Elements of Semiology. London: Tohunga (learned person) were engaged in Jonathan Cape. a struggle over the island Mata Nui (which Bell, Leonard. 1989. Walters and Maori could mean big green [island] in this Art: The Nature of a context). Maori representatives met with Lego executives in 2001 and 2002 to voice Relationship. In Gordon Walters: their concerns at the inappropriate use of Order and Intuition. Edited by Maori language and Polynesian culture in James Ross and Laurence

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Simmons. Auckland: Private Derrida, Jacques. 1985. The Ear of the Press:12-23. Other. New York: Schocken. Benjamin, Walter. 1984a. The Task of Dick Frizzell: “Tiki.” 1992. Exhibition the Translator. In Illuminations: catalogue. Auckland: Gow Essays and Reflections. London: Langsford Gallery. Jonathan Cape:69-82. Draft Declaration on the Rights of Benjamin, Walter. 1984b. The Work of Indigenous Peoples. 1993. UN Art in the Age of Mechanical Doc E/CN.4/Sub.2/1993/29. Reproduction. In Illuminations: Reproduced in Cultural Rights Essays and Reflections. London: and Wrongs. Edited by Halina Jonathan Cape:217-251. Nie_. Paris and Leicester: Blake, Janet. 2000. On Defining the UNESCO and Institute of Art Cultural Heritage. International and Law, 1998:191-197. and Comparative Law Quarterly Draft Principles and Guidelines for the 49:61-85. Protection of the Heritage of Clifford, James. 1985. Histories of the Indigenous Peoples. 1993. UN Tribal and the Modern. Art in Doc E/CN.4/Sub.2/1995/26. America 73:164-177. Reproduced in Cultural Rights Clifford, James. 1988. The Predicament and Wrongs. Edited by Halina of Culture. Cambridge: Harvard Nie_. Paris and Leicester: University Press. UNESCO and Institute of Art Coombe, Rosemary J. 1993. The and Law, 1998:198-202. Properties of Culture and the Fanon, Frantz. 1986. Black Skin, White Politics of Possessing Identity: Masks. London: Pluto. Native Claims in the Cultural Final Statement of the Regional Appropriation Controversy. Consultation on Indigenous Canadian Journal of Law and Peoples’ Knowledge and Jurisprudence 6:249-285. Intellectual Property Rights (Suva Coombe, Rosemary J. 1997. The Statement). 1995. Postcolonial Struggle and the Foster, Hal. 1985. The “Primitive” Legal Imagination. In Borrowed Unconscious of Modern Art. Power: Essays on Cultural October 34:45-70. Appropriation. Edited by Bruce Foucault, Michel. 1991. What is an Ziff and Pratima V. Rao. New Author? In The Foucault Reader. Brunswick: Rutgers University Edited by Paul Rabinow. Press:71-96. London: Penguin:101-120. Daes, Erica-Irene. 1997. Protection of the Freud, Sigmund. 1913. Totem und Tabu. Heritage of Indigenous People. Leipzig: Hugo Heller. New York and Geneva: United Greaves, Tom, ed. 1994. Intellectual Nations. Property Rights for Indigenous

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Peoples: A Sourcebook. Kant, Immanuel. 1952. Critique of Oklahoma City: Society for Judgement. Oxford: Clarendon Applied Anthropology. Press. Hamilton, Augustus. 1896. The Art Kristeva, Julia. 1969. Semeiotikè: Workmanship of the Maori Race in recherches pour une sémanalyse. New Zealand. Dunedin: Paris: Seuil. Fergusson and Mitchell. Lévi-Strauss, Claude. 1955. Tristes Hiller, Susan, ed. 1991. The Myth of Tropiques. Paris: Plon. Primitivism: Perspectives on Art. Mataatua Declaration. 1993. Reproduced New York: Pantheon. in Our Culture, Our Future: Hogarth, William. 1753. The Analysis of Report on Indigenous Cultural Beauty. London: Hogarth. and Intellectual Property Rights. Janke, Terri. 1998. Our Culture, Our Written and researched by Terri Future: Report on Indigenous Janke. Sydney and Canberra: Cultural and Intellectual Property Michael Frankel and Company Rights. Sydney and Canberra: and the Australian Institute of Michael Frankel and Company Aboriginal and Torres Strait and the Australian Institute of Islander Affairs, 1998:306-310. Aboriginal and Torres Strait McDonald, Ian. 1997. Protecting Islander Affairs. Indigenous Intellectual Property: Johnson, Vivien. 1996. Copyrites: A Copyright Perspective. Sydney: Aboriginal Arts in the Age of Australian Copyright Council. Mechanical Reproductive McEvilley, Thomas. 1984. Doctor Technologies. Exhibition Lawyer Indian Chief. Artforum, catalogue. Sydney: National 32:54-61. Indigeneous Arts Advocacy Mead, Hirini Moko. 1997. Maori Art Association. Restructured, Reorganised, Re- Jones, Owen. 1868. The Grammar of examined and Reclaimed. In Ornament. London: B. Quaritch. Maori Art on the World Scene. Julayinbul Statement on Indigenous Wellington: Matau:228-237. Intellectual Property Rights. 1993. Moustakas, John. 1989. Group Rights Reproduced in Our Culture, in Cultural Property: Justifying Our Future: Report on Indigenous Strict Inalienability. Cornell Law Cultural and Intellectual Property Review 74:1179-1227. Rights. Written and researched Neel, Lou-Ann, and Dianne Biin. 2000. by Terri Janke. Sydney and By Design: The Protection of Canberra: Michael Frankel and Intellectual and Creative Company and the Australian Rights. Paper presented at the Institute of Aboriginal and conference, Protecting Torres Strait Islander Affairs, Knowledge: Traditional 1998:310-313. Resource Rights in the New

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Millennium, February 2000, Rubin, William, ed. 1984. “Primitivism” hosted by the Union of British in 20th Century Art: Affinity of the Columbia Indian Chiefs and Tribal and the Modern. Exhibition University of British Columbia, catalogue. New York: Museum in Vancouver, BC. of Modern Art. Neich, Roger. 1993. Painted Histories: Salmond, Anne. 1978. Te Ao Tawhito: Early Maori Figurative Painting. A Semantic Approach to the Auckland: Auckland Traditional Maori Cosmos. New University Press. Zealand Journal of the Polynesian Nie_, Halina, ed. 1998. Cultural Rights Society 87:5-28. and Wrongs. Paris and Leicester: Shand, Peter. 1997. Adrift on an Ocean UNESCO and Institute of Art of Affinities: Modernist and Law. Primitivism and the Pacific Page Rowe, W. 1928. Maori Artistry. 1891-1984. Ph.D. diss., Wellington: Board of Maori University of Auckland. Ethnological Research. Tangata Pasifika. 2000. 18 June. Panoho, Rangihiroa. 1992. Maori: At Auckland: Television New the Centre, On the Margins. In Zealand. Headlands: Thinking Through Tunney, James. 1998. E.U., I.P., New Zealand Art. Sydney: Indigenous People and the Museum of Contemporary Digital Age: Intersecting Art:122-134. Circles? European Intellectual Patel, Surendra J. 1996. Can the Property Review 9:335-346. Intellectual Property Rights Uluru – Kata Tjuta Board of System Serve the Interests of Management and Parks Indigenous Knowledge? In Australia. 2000. Uluru – Kata Valuing Local Knowledge: Tjuta National Park Plan of Indigenous People and Intellectual Management. Canberra: Property Rights. Edited by Commonwealth of Australia. Stephen B. Brush and Doreen Waitangi Tribunal. 1986. Findings of the Stabinsky. Washington, DC: Waitangi Tribunal relating to Te Island Press:305-322. Reo Maori and a claim lodged by Phillips, W.J. 1938. He koru. Art in New Huirangi Waikerepuru and Nga Zealand 11:35-40. Kaiwhakapumau I te Reo Pound, Francis. 1994. The Space Between: Incorporated Society. Wellington: Pakeha Use of Maori Motifs in The Waitangi Tribunal. Modernist New Zealand Art. Wells, Kathryn. 1996. The Auckland: Workshop Press. Development of an Rhodes, Colin. 1994. Primitivism and Authenticity Trade Mark for Modern Art. London: Thames Indigenous Artists. Alternative and Hudson. Law Review 21:38-39.

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Woodmansee, Martha. 1994. On the Author Effect: Recovering Collectivity. In The Construction of Authorship: Textual Appropriation in Law and Literature. Edited by Martha Woodmansee and Peter Jaszi. Durham: Duke University Press:15-28. Wright, Shelley. 1996. Intellectual Property and the “Imaginary Aboriginal.” In Majah: Indigenous Peoples and the Law. Edited by Greta Bird, Gary Martin, and Jennifer Nielsen. Sydney: Federation Press:129- 151.

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