Fair Use As Cultural Appropriation
Fair Use as Cultural Appropriation Trevor G. Reed* Over the last four decades, scholars from diverse disciplines have documented a wide variety of cultural appropriations from Indigenous peoples and the harms these have inflicted. Copyright law provides at least some protection against appropriations of Indigenous culture— particularly for copyrightable songs, dances, oral histories, and other forms of Indigenous cultural creativity. But it is admittedly an imperfect fit for combatting cultural appropriation, allowing some publicly beneficial uses of protected works without the consent of the copyright owner under certain exceptions, foremost being copyright’s fair use doctrine. This Article evaluates fair use as a gatekeeping mechanism for unauthorized uses of copyrighted culture, one which empowers courts to sanction or disapprove of cultural appropriations to further copyright’s goal of promoting creative production. DOI: https://doi.org/10.15779/Z38V97ZS35. Copyright © 2021 Trevor G. Reed * Trevor Reed (Hopi) is an Associate Professor of Law at Arizona State University’s Sandra Day O’Connor College of Law. The author thanks June Besek, Bruce Boyden, Christine Haight Farley, Eric Goldman, Rhett Larson, Jake Linford, Jon Kappes, Kali Murray, Guy Rub, Troy Rule, Erin Scharff, Joshua Sellers, Michael Selmi, Justin Weinstein-Tull, and Andrew Woods for their helpful feedback on this project. The author also thanks Qiaoqui (Jo) Li, Elizabeth Murphy, Jillian Bauman, M. Vincent Amato and Isaac Kort-Meade for their research assistance. Early versions of this paper were presented at, and received helpful feedback from, the 2019 Race + IP conference, faculty colloquia at the University of Arizona and University of Washington, the American Association for Law School’s annual meeting, and the American Library Association’s CopyTalk series.
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