Cultural Appropriation and the Arts (New Directions in Aesthetics)

Cultural Appropriation and the Arts

New Directions in Aesthetics Series editors: Dominic McIver Lopes, University of British Columbia, and Berys Gaut, University of St Andrews. Blackwell’s New Directions in Aesthetics series highlights ambitious single- and multiple-author books that confront the most intriguing and pressing problems in aesthetics and the philosophy of art today. Each book is written in a way that advances understanding of the subject at hand and is accessible to upper-undergraduate and graduate students. 1. Robert Stecker Interpretation and Construction: Art, Speech, and the Law 2. David Davies Art as Performance 3. Peter Kivy The Performance of Reading: An Essay in the Philosophy of Literature 4. James R. Hamilton The Art of Theater 5. Scott Walden, ed. Photography and Philosophy: Essays on the Pencil of Nature 6. James O. Young Cultural Appropriation and the Arts Forthcoming 7. Garry Hagberg, ed. Art and Ethical Criticism

Cultural Appropriation and the Arts

James O. Young

© 2008 by James O. Young BLACKWELL PUBLISHING 350 Main Street, Malden, MA 02148-5020, USA 9600 Garsington Road, Oxford OX4 2DQ, UK 550 Swanston Street, Carlton, Victoria 3053, Australia The right of James O. Young to be identified as the author of this work has been asserted in accordance with the UK Copyright, Designs, and Patents Act 1988. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, except as permitted by the UK Copyright, Designs, and Patents Act 1988, without the prior permission of the publisher. Designations used by companies to distinguish their products are often claimed as trademarks. All brand names and product names used in this book are trade names, service marks, trademarks, or registered trademarks of their respective owners. The publisher is not associated with any product or vendor mentioned in this book. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold on the understanding that the publisher is not engaged in rendering professional services. If professional advice or other expert assistance is required, the services of a competent professional should be sought. First published 2008 by Blackwell Publishing Ltd 1

2008

Library of Congress Cataloging-in-Publication Data Young, James O., 1957– Cultural appropriation and the arts / James O. Young. p. cm. — (New directions in aesthetics ; 6) Includes bibliographical references and index. ISBN 978-1-4051-7656-9 (hardcover : alk. paper) 1. Arts and society. 2. Arts—Moral and ethical aspects. 3. Cultural property. I. Title. NX180.S6Y66 2008 700.1′03—dc22 2007024780 A catalogue record for this title is available from the British Library. Set in 11/13pt Dante by Graphicraft Limited, Hong Kong Printed and bound in Singapore by Markono Print Media Pte Ltd The publisher’s policy is to use permanent paper from mills that operate a sustainable forestry policy, and which has been manufactured from pulp processed using acid-free and elementary chlorine-free practices. Furthermore, the publisher ensures that the text paper and cover board used have met acceptable environmental accreditation standards. For further information on Blackwell Publishing, visit our website at www.blackwellpublishing.com

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. . . appropriation is what novelists do. Whatever we write is, knowingly or unknowingly, a borrowing. Nothing comes from nowhere. – Margaret Drabble

Bad artists copy. Good artists steal. – Pablo Picasso

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For Julia and Piers

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Contents

Preface

ix

1

1

What Is Cultural Appropriation? Art, Culture, and Appropriation Types of Cultural Appropriation What is a Culture? Objections to Cultural Appropriation In Praise of Cultural Appropriation

2 The Aesthetics of Cultural Appropriation The Aesthetic Handicap Thesis The Cultural Experience Argument Aesthetic Properties and Cultural Context Authenticity and Appropriation Authentic Appropriation Cultural Experience and Subject Appropriation Appropriation and the Authentic Expression of a Culture 3 Cultural Appropriation as Theft Harm by Theft Possible Owners of Artworks Cultures and Inheritance Lost and Abandoned Property Cultural Property and Traditional Law Collective Knowledge and Collective Property

1 5 9 18 27 32 32 34 41 44 46 55 60 63 63 64 68 70 74 78 vii

Contents

Ownership of Land and Ownership of Art Property and Value to a Culture Cultures and Intellectual Property Some Conclusions About Ownership and Appropriation The Rescue Argument 4 Cultural Appropriation as Assault

85 88 93 97 102 106

Other Forms of Harm Cultural Appropriation and Harmful Misrepresentation Harm and Accurate Representation Cultural Appropriation and Economic Opportunity Cultural Appropriation and Assimilation Art, Insignia, and Cultural Identity Cultural Appropriation and Privacy

106 107 113 114 118 120 125

5 Profound Offence and Cultural Appropriation

129

Harm, Offence, and Profound Offence Examples of Offensive Cultural Appropriation The Problem and the Key to its Solution Social Value and Offensive Art Freedom of Expression The Sacred and the Offensive Time and Place Restrictions Toleration of Offensive Art Reasonable and Unreasonable Offence Conclusion: Responding to Cultural Appropriation Summing Up Supporting Minority Artists Envoy Bibliography of Works Cited and Consulted Index

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129 131 134 136 137 141 143 145 147 152 152 154 157 159 166

Preface

This essay is bound to be controversial. Passions run high when cultural appropriation is under consideration and many of my views are contrary to those with the most currency. Cultural appropriation is particularly controversial since, in the contemporary world, individuals from rich and powerful majority cultures often appropriate from disadvantaged indigenous and minority cultures. Cultural appropriation is seen as inherently bound up with the oppression of minority cultures. Nevertheless, in this essay I will argue that cultural appropriation is often defensible on both aesthetic and moral grounds. In the context of the arts, at least, even appropriation from indigenous cultures is often unobjectionable. In arguing for this conclusion, I may leave readers with the impression that I am insensitive to the plight of indigenous and minority cultures from which members of majority cultures have appropriated. Indeed, my defense of much cultural appropriation may make me seem worse than merely insensitive. I believe, however, that I am not. I am aware of and deeply concerned by the position in which members of indigenous cultures often find themselves. In the course of writing this essay, I have met and talked extensively with Native North Americans. I have read a great deal by indigenous writers from North America and Australasia. I have become increasing aware of the legitimate grievances of indigenous peoples. I have found the stories of Sherman Alexie to be particularly moving. Alexie is a member of the Spokane nation, whose traditional lands are just across the Strait of Georgia from where I live. I am acutely aware that I live on the traditional lands of the Songish people, lands that were never relinquished by a treaty. Almost every Sunday morning I go for a run that takes me along Willows Beach in Victoria and past the site of a Songish village, now occupied by a ix

Preface

playground (where my children have often played). Millions of other people are like me and live on appropriated or, rather, misappropriated land. This misappropriation of land is the source of much of the oppression of indigenous cultures. No part of this essay should be seen as a defense of the European appropriation of the lands of indigenous peoples. I do not think that it can be successfully defended. I am similarly aware of and appalled by the treatment of non-indigenous minorities in many contexts. While I am sensitive to these facts, I will still defend a wide range of instances of cultural appropriation, including appropriation from indigenous and minority cultures. I hope that my arguments will be evaluated on their merits. Any argument against my views that alleges that I am unsympathetic to disadvantaged cultures would commit the ad hominem fallacy. It would also contain a false premise. This essay is the product of about 15 years of reflection on cultural appropriation. Only slowly and gradually have I become aware of how complex and interesting is the issue of cultural appropriation. My interest in the subject began in the early 1990s, when I read in the Globe and Mail newspaper a column on cultural appropriation by Thomas Hurka. Although Tom is a distinguished philosopher for whom I have great respect, I disagreed completely with what he had to say and I quickly produced my first essay on the subject. I thought that I had, in that first effort, said pretty much everything that needed to be said about cultural appropriation in the arts. I presented my paper at the Northwest Conference on Philosophy in Boise, Idaho, published it in the Journal of Value Inquiry, and then for a time I did not give the subject much more thought. A year or two later, Paul Tate, who had heard that paper when I gave it at the conference in Idaho, invited me to participate in a conference on cultural appropriation that he was organizing. It was to be held in Mysore, India, in February 1996. I could not resist the opportunity to visit the subcontinent for the first time. So I thought about cultural appropriation a bit more and found that I had some things to add to my first essay. I learned a good deal from the conference in India and I learned even more about cultures and appropriation from being in India and talking to Indians. I subsequently presented a version of the Mysore paper at the American Society for Aesthetics Pacific Division meeting held at Pacific Grove, California, in April, 1997. Then I neglected the subject again as I focused my attention on the research program that culminated in my book Art and Knowledge (2001). In early 2001, my good friend Sheldon Wein invited me to visit Halifax, Nova Scotia, and to give the Inaugural Public Philosophy Lecture x

Preface

at St Mary’s University there. The Public Philosophy Lecture series was founded by Rowland Marshall, Professor Emeritus of Philosophy at St Mary’s. The series is intended to bring philosophical scrutiny to bear on issues of public concern. I was an odd choice to give the first lecture in this series since I had contributed very little to public debates. Indeed, until that point, my philosophical orientation was almost exclusively quite theoretical. Having been invited, however, I began to think about the topics I could address. I was aware that the debate over cultural appropriation had continued to rage, and this was an obvious choice of a subject. A little investigation and reflection was enough to show that much remained to be said on the subject. The experience of presenting the St Mary’s Public Philosophy Lecture contributed a great deal to my awareness of the full richness and philosophical interest of the debate surrounding cultural appropriation. I gave the paper first (as a sort of warm-up) at the University of New Brunswick. There I received some very useful criticisms from the members of the Philosophy Department, particularly from my former student, Keith Culver. The next day, I flew to Halifax and gave the paper at St Mary’s. Again, I received excellent feedback from the philosophical community in that city, both from the philosophers at St Mary’s and from those at Dalhousie University. Particular mention should be made of Duncan MacIntosh, John MacKinnon, Steven Burns, and Jennifer Epp, then a graduate student at Dalhousie. The questions of Culver and Epp led to me recognize that there was a whole dimension of cultural appropriation that I had overlooked. I had concentrated on the question of whether cultural appropriation is harmful. I had not thought that it could be wrong because it was offensive. Culver pointed me in the direction of Joel Feinberg’s writings on offence and harm. These have had a huge impact on how I have thought about cultural appropriation. My essay, “Profound Offence and Cultural Appropriation,” published in the Journal of Aesthetics and Art Criticism, was an extended attempt to answer the questions Culver and Epp asked. Chapter 5 of this volume is an expanded and corrected version of this essay. Even at this point it was not, perhaps, inevitable that I would write more about cultural appropriation. However, in 2002 Conrad Brunk came to the University of Victoria as the new director of the Centre for Studies in Religion and Society. He also accepted an appointment in the Department of Philosophy. Shortly after his arrival, Conrad invited me to lunch at the University Club. Conrad wanted to talk about lots of things as a xi

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new member of the department that I chair, but one of his questions was, “Do you have any good ideas for a multidisciplinary group research project?” Well, as it happened, I did. By that point, I knew that only a multidisciplinary research group would have the expertise to address all of the dimensions of cultural appropriation. We decided to put together a proposal to the Social Sciences and Humanities Research Council of Canada (SSHRC ) to fund such a research group. The next step in the evolution of this book occurred when Julie van Camp invited me to participate a session on cultural property at the 2004 American Philosophical Association Pacific Division meetings in Pasadena. I learned a great deal on this occasion from the other panelists in the session, particularly Elizabeth Coleman, Geoffrey Scarre, and Daniel Shapiro. The audience at the session was small but the standard of questions asked was remarkably high. It was at this point, I think, that I realized that only a book could do justice to what I had to say about cultural appropriation, and even then I would only be able to talk about cultural appropriation in the context of the arts. I presented another version of the paper I wrote for Pasadena at the Canadian Philosophical Association Congress, held at London, Ontario, in June 2005. Here I crossed paths again with Jennifer Epp, now a doctoral candidate at the University of Western Ontario, who was the commentator on my paper. Her commentary was very helpful as I continued to revise my ideas. The paper was published as “Cultures and Cultural Property” in the Journal of Applied Philosophy. At about the time that van Camp invited me to Pasadena, Geoffrey Scarre invited me to contribute to a volume that he and his brother Chris were editing. This became The Ethics of Archaeology (2006). My contribution to this volume, “Cultures and the Ownership of Archaeological Finds,” developed some of the ideas I first presented in Pasadena, and applied them to the specific case of archaeological finds. Echoes of this paper are found in Chapter 3 of this essay. In 2004, Conrad and I received news that our application to SSHRC had been successful. This enabled us to bring together a group of about 20 scholars for two meetings in Victoria. The experience of being a part of this research group was richly rewarding. I have learned from everyone in the group. Allow me to list them all, even though it involves some repetition of earlier names: Laura Arbour, Michael Asch, Kelly Bannister, Conrad Brunk, Elizabeth Coleman, Rosemary Coombe, Anne Eaton, Ivan Gaskell, Susan Haley, Sa’ke’j Henderson, Travis Kroeker, Dominic Lopes, George Nicholas, Daryl Pullman, Geoffrey Scarre, Maui xii

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Solomon, Andrea Walsh, and Alison Wylie. Paul Teel served as a helpful and efficient research assistant to the research group. I want particularly to thank Susan Haley, with whom I worked on a chapter in the volume that emerged from this project. As a novelist, she is a practicing appropriator of culture and her wealth of first-hand information has been invaluable. (Her novels about North American First Nations include The Complaints Department, 2000, and The Murder of Medicine Bear, 2003.) I am grateful to Susan for permission to incorporate ideas from our essay into this volume. In April of 2006 I visited Beijing at the invitation of Professor Liao Shenbai. I presented drafts of Chapters 3 and 5 at Beijing Normal University and a draft of Chapter 2 at Renmin University of China. This last presentation was published as “Art, Authenticity and Appropriation” in Frontiers of Philosophy in China. Discussing my ideas with acute philosophers from another culture was an invaluable opportunity and I am grateful to all of those who attended my talks in China. Speaking of cultural appropriation, I was amazed by the extent to which Chinese philosophers have successfully appropriated Western philosophy. Of the philosophers I met in China, I would like, in particular, to thank Professor Liao and Miss Yang Xu who acted as my guide and interpreter during most of the time I spent in Beijing. I am also grateful to Professor Tian Ping for the opportunity to publish in Frontiers of Philosophy in China. This opportunity led me to refine and revise ideas that were subsequently incorporated into Chapter 2 of this book. In March 2007, shortly before I submitted the final version of the manuscript to the publisher, I participated in the Information Ethics Roundtable, held at the University of Arizona. I am grateful to Kay Mathiesen for the invitation to participate in this event. My experiences at the Roundtable led to several improvements to the final version of this book. The opportunity to hear more perspectives of Native North Americans was particularly valuable. In the course of writing this book I have learned a great deal from discussions with my colleagues at the University of Victoria. Of all members of my department, I am most indebted to Colin Macleod. He is an exemplary colleague who is always ready to discuss a philosophical question. I also benefited from discussions with Jeff Foss, Thomas Heyd, Cindy Holder, David Scott, Angus Taylor, Scott Woodcock, and Jan Zwicky. The University of Victoria is home to an excellent group of philosophers and it is a pleasure and privilege to be a member of this philosophical community. I am grateful to the University of Victoria xiii

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for the study leave on which the bulk of this book was written. Members of the extended Victoria philosophical community to whom I am indebted include Bob Bright, Mark Tatchell, Karen Shirley, and Sandy Bannikoff. I want particularly to thank Sandy for carefully reading and extensively commenting on a complete draft of this essay. Her comments helped me improve this book in both style and content. I am grateful to the comments of the two reviewers to whom Blackwell sent this book. Stephen Davies was one and the other remained anonymous. They provided me with the most thorough and helpful comments that I have ever received on any manuscript I have submitted for publication. Between them they provided about 18 pages of comments, suggestions, and criticisms, some minor and some more probing. The revision of the manuscript to take into account the two reviews resulted in a much better book. In this context I should also acknowledge the support of the editors of the New Directions in Aesthetics Series: Berys Gaut and Dom Lopes. Without their encouragement, this book may never have been written. I am also grateful to Jeff Dean, Senior Acquisitions Editor for Philosophy at Blackwell, for his support of my project. I thank Claire Creffield for her careful copyediting of my manuscript. My father-in-law, the Honourable Donald Bowman, Chief Justice of the Tax Court of Canada, read an entire draft manuscript of this essay and provided perceptive comments on it. Having the perspective of a distinguished jurist on my project is a great privilege and the content of this essay was undoubtedly improved. Mr Bowman’s comments also helped improve the style and clarity of my writing. Although I have profited from the advice and criticism of many people, the views expressed in this essay are mine alone. I am solely responsible for any errors that remain. This book is dedicated, with all of a doting father’s love, to my daughter, Julia Laurel Oriana Bowman Young, and to my son, Piers James Isaiah Bowman Young. I hope that they will come to learn from and appreciate many cultures. My children are the most precious gifts I could have been given by my wife, Laurel. That said, a little help with editing the manuscript would also have been nice. Victoria, British Columbia, 2007

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What Is Cultural Appropriation?

Chapter 1

What Is Cultural Appropriation?

Art, Culture, and Appropriation Artists from many cultures are constantly engaging in cultural appropriation. Picasso famously appropriated motifs which originated in the work of African carvers. Painters who are members of mainstream Australian culture have employed styles developed by the aboriginal cultures of Australasia. The jazz and blues styles developed in the context of AfricanAmerican culture have been appropriated by non-members of the culture from Bix Beiderbecke to Eric Clapton. Paul Simon has incorporated into his music elements of music from South Africa’s townships. The American composer Steve Reich has studied with a master drummer from Ghana and the rhythms of Ewe culture have influenced his compositions. The poet Robert Bringhurst has retold stories produced by members of North American First Nations. Goethe’s West-Eastern Divan (1814–19) borrows motifs from Hafiz, a Persian poet of the fourteenth century. Novelists such as Tony Hillerman and W. P. Kinsella have made the native cultures of North America the subject matter of many of their books. A host of filmmakers has done the same in movies. These include animated movies from Disney’s Peter Pan (1953) to DreamWorks’ Road to El Dorado (2000). Artists are not the only people to engage in cultural appropriation. Entire artworks have been transferred from one culture to another in variety of ways. Most famously, Lord Elgin transported the friezes from the Parthenon to Britain. Carvings produced in the context of various indigenous cultures have found their way into the hands of museums and private collectors around the world. Each of these sorts of cultural appropriation has sparked controversy and debate. This essay is an investigation of the ethical and aesthetic 1

What Is Cultural Appropriation?

issues that arise when appropriation occurs in the context of the arts. Both aesthetic and ethical arguments have been advanced against the practice of cultural appropriation of art. One can argue that artworks that are the product of cultural appropriation are bound to be aesthetic failures. Alternatively one can argue that acts of cultural appropriation are immoral. Aesthetic and moral objections could be combined. The aesthetic failure of certain artworks may cause them to be wrongly harmful to members of a culture. (The work may, for example, misrepresent the originating culture in a harmful way.) Some of these objections are, as we shall see, undoubtedly telling in particular cases. Many acts of cultural appropriation are, however, morally unobjectionable and some of them result in artworks of great aesthetic value. A vast literature on cultural appropriation already exists. This essay is distinctive in that it is a philosophical inquiry into the moral and aesthetic issues raised by reflection on cultural appropriation. The debate about cultural appropriation has been conducted almost entirely by lawyers,1 anthropologists,2 museum curators,3 archaeologists,4 and artists.5 Only a few philosophers have contributed to the debate. Philosophers have been remiss in not participating more fully in this debate. The many difficult and pressing aesthetic and moral issues raised by cultural appropriation cannot be resolved without the contributions of philosophers. They have the requisite knowledge of normative (moral and aesthetic) questions. Before any progress can be made in addressing the ethical and aesthetic issues raised by the appropriation of artistic products, we need to have a better understanding of the concept of cultural appropriation. The first point to make is that this book is concerned with the cultural appropriation of art. Artworks are only one of a wide range of items that could be subject to cultural appropriation. Human remains, archaeological finds, anthropological data, scientific knowledge, genetic material, land, religious beliefs, and a range of other items have all been subject to cultural appropriation. To the extent that I can, I will discuss the appropriation of art independently of the appropriation of these other sorts 1

Two law reviews have devoted entire issues to the appropriation of cultural property: Arizona State Law Journal, vol. 24 (1992), and University of British Columbia Law Review, special issue (1995). 2 For a bibliography that indicates the size of the anthropological literature on cultural appropriation, see Brown (2003). 3 See the essays in Pearce (1994). 4 See Scarre and Scarre (2006), Lynott and Wylie (2000), and Barkan and Bush (2002). 5 For example, Todd (1990), Keeshig-Tobias (1997), and Bringhurst (1999). 2

What Is Cultural Appropriation?

of things. Of course, one cannot adequately discuss the appropriation of art completely independently of the appropriation of other things. Sometimes appropriated artworks are also archaeological finds. Sometimes the appropriation of art has a religious dimension. This is so when appropriated items have ritual or spiritual significance in their original cultural context. Perhaps most importantly, some appropriation of art has to be understood against the background of the appropriation of land. The appropriation of land from indigenous peoples has resulted in their oppression. Appropriation will tend to be morally suspect when it occurs in the context of unequal power caused by the appropriation of land. Still, the appropriation of art can be singled out for special attention. By focusing on the cultural appropriation of artworks, I can avoid certain difficult questions that arise primarily in the context of other sorts of appropriation. I have said that I will focus on the appropriation of art but I have said nothing about what counts as art. Questions about the definition of art are notoriously difficult. Giving an account of what sorts of items count as artworks is further complicated if not every culture has the same conception of art. It is even more complicated if some cultures do not employ the concept of art at all. Anthropologists tell us that every known culture has a conception of objects appreciated for their aesthetic properties,6 but there is debate about whether the concept of art is universal.7 Fortunately I do not have to provide a definition of art in this context or to determine whether it is universal. I only need to say a little more about what sort of items I have in mind when I am discussing the cultural appropriation of art. When speaking of art, I have in mind the modern Western conception of art. Central to this conception of art is the idea that members of a class of artifacts, namely artworks, are valuable as objects with aesthetic properties. (I will acknowledge in the next chapter that the aesthetic properties of an artwork may depend on its context and, in particular, its cultural context.) I am concerned with the appropriation of items regarded as artworks and artistic elements (in a sense to be defined in the next paragraph) in the modern West. The culture from which something is appropriated may or may not regard the item as an artwork or an artistic element. I have already acknowledged that the assessment of an act of cultural appropriation needs to take into account how something is regarded in its original cultural 6 7

For a famous statement of this view, see Boas (1955), p. 9. For an exploration of this question, see Davies (2000) and Dutton (2000). 3

What Is Cultural Appropriation?

context. Here I am simply trying to delimit the class of objects whose appropriation is under consideration. In discussing the appropriation of art, I will focus on two sorts of activities. The first is appropriation of artistic content by individuals, namely artists, who regard themselves as engaged in the production of works (or performances) valuable as objects of aesthetic experience. Artistic content can include complete works (as when a musician performs a composition from another culture) or artistic elements. By artistic elements I mean styles, plots, musical themes, motifs, subject matters, genres, and similar items. They are not themselves works of art. Instead they may be described as the building blocks of works of art. The second sort of activity concerns individuals who appropriate items which they regard as artworks, that is objects valuable as aesthetic objects. This is the appropriation of tangible works of art by individuals (such as Lord Elgin) and many museums. Perhaps the subject of this essay is best described as the cultural appropriation of artworks and artistic content by artists and other members of the artworld, for aesthetic ends. Artists and collectors may be appropriating something that is not regarded as art in its home culture. Again, in assessing appropriation by artists and others, particularly in giving an ethical assessment, one must bear in mind that they may be appropriating something that has more than aesthetic value in its home culture. Having said a few words about what is being appropriated, I need to devote some attention to the concept of appropriation itself. The Oxford English Dictionary defines ‘appropriation’ as “The making of a thing private property . . . ; taking as one’s own or to one’s own use.” This entry precisely captures the sense of appropriation which is at stake in this essay. Some performing artists appropriate songs from other cultures. Some artists take as their subject matter other cultures. Artists take as their own to use styles, motifs, stories, and other artistic elements. Collectors and museums take as their private property entire works of art. These are all instances of appropriation. Not all appropriation by artists is cultural appropriation. Almost all artists engage in some sort of appropriation in that they borrow ideas, motifs, plots, technical devices, and so forth from other artists. In the contemporary artworld, appropriation is often quite self-conscious as artists borrow, in a manner often described as ‘postmodern’, images from other artists. I have in mind the sort of borrowings in which artists such as Jeff Koons and Sherri Levine engage. Artists who engage in postmodern appropriation are not, or not necessarily, engaged in 4

What Is Cultural Appropriation?

cultural appropriation. (I will, however, return to a consideration of postmodern appropriation in the hope that it will shed some light on cultural appropriation.) In this essay I am concerned only with cultural appropriation, that is, appropriation that occurs across the boundaries of cultures. Members of one culture (I will call them outsiders) take for their own, or for their own use, items produced by a member or members of another culture (call them insiders). When Robert Bringhurst retells the stories of the great Haida poets, he is taking them as his own to (re)use. Since he is not a Haida, he is engaged in cultural appropriation. Eric Clapton takes the blues as something for his use. Clapton’s culture is not that in which the blues originated, so his appropriation is cultural appropriation. Lord Elgin clearly regarded the Parthenon Marbles as something he could take for his own. (Initially, Elgin regarded them as his private property. Only later were the sculptures transferred to the British Museum.) Not a Greek, Elgin’s transfer of the Marbles to Britain was an act of cultural appropriation. (As we will see, the representation of other cultures is often regarded as a form of cultural appropriation. I will address this point in the next section.) As the concept of cultural appropriation is used in this essay, it does not necessarily carry with it any moral baggage. Someone might prefer to use the concept of cultural appropriation to designate an objectionable class of transactions. Such people would distinguish cultural appropriation from cultural exchange or cultural borrowing, which could be unobjectionable. I will apply the concept of cultural appropriation to any use of something developed in one cultural context by someone who belongs to another culture. I will then try to distinguish between objectionable and unobjectionable cultural appropriation.

Types of Cultural Appropriation From what I have already said, it will be apparent that the sorts of activities classified as acts of cultural appropriation are quite diverse. Another dimension of this complexity remains to be revealed. All acts of appropriation involve taking, but the sorts of things that can be taken, even if we limit ourselves to the arts, are quite diverse. By my reckoning, at least five quite different sorts of activities have been classified as acts of cultural appropriation. Tangible works of art will be the first sort of item with which we will be concerned. I will refer to the appropriation of such items as object 5

What Is Cultural Appropriation?

appropriation. Object appropriation occurs when the possession of a tangible work of art (such as a sculpture or a painting) is transferred from members of one culture to members of another culture. The removal of the friezes from the Parthenon by Lord Elgin is often regarded as a paradigm case of object appropriation. The transfer of a Native North American totem pole to a European museum would also be a case of such appropriation. (The transfer of a Xenaaksiala pole from Vancouver Island to the Stockholm Museum of Ethnology will be discussed in Chapter 3.) Not all instances of object appropriation are so dramatic. If I were to travel to New Guinea and purchase a piece of locally produced tourist art, I would have engaged in object appropriation. The second sort of item that could be appropriated is intangible. This could be a musical composition, a story, or a poem. Content appropriation will be my label for this sort of appropriation. When this sort of appropriation occurs, an artist has made significant reuse of an idea first expressed in the work of an artist from another culture. A musician who sings the songs of another culture has engaged in content appropriation, as has the writer who retells stories produced by a culture other than his own. Robert Bringhurst’s versions of Haida myths are examples of content appropriation. Akira Kurosawa is engaged in content appropriation when he borrows plots from Shakespeare’s plays and reuses them in his films. (Kurosawa will be discussed in a little more detail later in this chapter.) Something less than an entire expression of an artistic idea can be appropriated. Sometimes artists do not reproduce works produced by another culture, but still take something from that culture. In such cases, artists produce works with stylistic elements in common with the works of another culture. Musicians who are not a part of African-American culture but who compose original jazz or blues works can be said to have engaged in appropriation in this sense. Similarly, culturally mainstream Australians who paint in the style of the aboriginal peoples would be engaged in this sort of appropriation. This sort of activity is a subcategory of content appropriation that may be called style appropriation. Another sort of content appropriation can be identified. This form of appropriation is related to style appropriation but only basic motifs are appropriated. This sort of appropriation may be called motif appropriation. It occurs when artists are influenced by the art of a culture other than their own without creating works in the same style. Picasso, for example, appropriated ideas from African carving in Les Demoiselles d’Avignon (1907), but his painting is not in an African style. Similarly, The 6

What Is Cultural Appropriation?

Green Stripe (1905), by Henri Matisse, is a fauvist painting, but it selfconsciously incorporates certain motifs from African art. In music we can give the examples of Igor Stravinsky (for example, Piano Rag-Music, 1919) and Darius Milhaud (the jazz fugue in the second section of La Création du Monde, 1923). They were influenced by the jazz of AfricanAmerican culture, but the compositions I have mentioned are not works in a jazz style. A final sort of appropriation can be identified that differs from the other sorts. In many discussions of cultural appropriation, concerns have been raised about outsiders who represent in their artworks individuals or institutions from another culture. The Canada Council, the Canadian federal government’s agency for the funding of the arts, recognizes as a form of appropriation “the depiction of . . . cultures other than one’s own, either in fiction or non-fiction.”8 When this sort of appropriation occurs no artistic product of a culture is appropriated. Instead artists appropriate a subject matter, namely another culture or some of its members. I will call this subject appropriation since a subject matter is being appropriated. Subject appropriation has sometimes been called ‘voice appropriation’, particularly when outsiders represent the lives of insiders in the first person. Examples of subject appropriation are easy to provide. Many of Joseph Conrad’s novels involve subject appropriation, since Conrad frequently wrote about cultures other than his own. Kipling’s Kim (1901) is a classic example of subject appropriation. Although he was born in India, none of the Indian cultures Kipling represented was his own. Puccini’s Madame Butterfly (1904) is another example of subject appropriation from roughly Kipling’s era. Alexander McCall Smith is a more recent example of an artist who has engaged in subject appropriation. Smith, a Scottish lawyer, has written a series of best-selling novels featuring Precious Ramotswe, a Botswanan private detective. A particularly interesting case of subject appropriation is found in Stephen Gray’s novel, The Artist is a Thief (2000). This novel, by a non-aboriginal Australian lawyer, is largely set among indigenous Australians and has as its subject matter the appropriation of aboriginal art. The representation of aspects of indigenous North American cultures by members of majority cultures has been particularly controversial. Hillerman is an example of someone who has written about American Indians. He sets many of his novels among the Navajo people of the American south west, but is not himself Navajo. 8

Quoted in Coombe (1998), p. 209. 7

What Is Cultural Appropriation?

Subject appropriation is in an important respect different from the other sorts of appropriation considered in this essay. Indeed, the term ‘subject appropriation’ may be a misnomer. Appropriation involves taking but artists who engage in subject appropriation do not, in any obvious sense, take anything from insiders. A subject matter is not something a culture has produced in the same way that its members have created stories, sculptures, or songs that an outsider might appropriate. Moreover, when outsiders have represented some culture in their work, insiders still have the opportunity to represent it. That is, outsiders have not appropriated exclusive use. Still, some writers have strongly objected to what I am calling subject appropriation on the grounds that it takes something from insiders. Let me say a few words about why they are wrong. One way to deny that subject appropriation is a form of taking would involve denying that artists actually represent other cultures. That is, one could try to argue that subject appropriation takes nothing from insiders by maintaining that works of fiction do not represent real things. On this view, artists merely create fictional objects and only they are represented in works of fiction. Such a claim would be disingenuous. In works of fiction, including novels and films, artists can represent real things, including insiders and their cultures. Something is represented in a work of art when audience members can identify the objects in the world that correspond to the objects described in the work. For example, the Navajo are certainly represented in Hillerman’s novels, even if Joe Chee is a fictional character, since readers of the novels have no difficulty identifying the Navajo as the people represented. When I say that subject appropriation is not a form of taking, I am not denying that works of fiction can represent real cultures. Rather, I am saying that an act of representing a culture is not an act of appropriating from it. Artists represent their own experience in their works. In representing their experience, artists represent what is already theirs. They do not represent the experience of anyone else. When artists represent their experience of other cultures, the insiders are left with their experiences. They are not appropriated. Other cultures fall within the experience of artists so, in representing other cultures, artists do not have to appropriate anyone’s experience, even if that were possible. Although nothing is taken by subject appropriation, and the term is misleading, the representation of other cultures is often discussed in the context in which cultural appropriation is addressed. This is understandable, given that subject appropriation gives rise to questions that are 8

What Is Cultural Appropriation?

parallel in certain ways to those that arise from other forms of appropriation. Even if nothing is taken by subject appropriation, acts of representing cultures other than one’s own can still be suspect from an aesthetic or moral perspective. Indeed, subject appropriation is controversial precisely because outsiders draw upon their own experiences of other cultures. Since outsiders do not have access to the experience of insiders, one might argue, outsiders are bound to misrepresent the culture of insiders. Since the works of outsiders distort the insiders’ culture, they may be thought to have aesthetic flaws. Since artists could misrepresent the culture of others in a harmful or offensive manner, subject appropriation could also be morally objectionable. There is one sort of context in which subject appropriation seems to be a form of taking. This is the sort of context in which outsiders represent a subject matter that is intended by insiders to be secret. Imagine, for example, that outsiders represent a religious ceremony which insiders wish to remain unknown to anyone but insiders. An outsider, in creating and making public such a representation, may have acquired knowledge of the ceremony deceptively or have violated an obligation of confidence. This might seem to be a case in which outsiders have wrongfully appropriated, or stolen, a subject matter that belongs to insiders. I agree that the representation of secret matters is an objectionable form of harm, but I prefer to analyze such cases as violations of a right to privacy, not as a kind of theft. These cases will be examined in Chapter 4.

What is a Culture? Having said something about the appropriation and the sorts of things that are being appropriated, it remains to say something about the concept of culture. The complexity of cultures is the source of some of the difficulties to be addressed in this essay, but the concept of culture in general is easy enough to define. Again we may appeal to the Oxford English Dictionary. The relevant entry on the noun ‘culture’ reads, “A particular form or type of intellectual development. Also, the civilization, customs, artistic achievements, etc., of a people, esp. at a certain stage of its development or history.” (Note that artistic achievements are singled out as one of the crucial features of culture.) In this context it is also worth recalling Sir Edward Burnett Tylor, the pioneering anthropologist. He gave another influential and useful definition of culture. He 9

What Is Cultural Appropriation?

described a culture as “that complex whole which includes knowledge, belief, arts, morals, law, custom, and any other capabilities and habits acquired by man as a member of society.”9 (Again, note the reference to arts.) For present purposes, we do not need to be too precise about which characteristics are part of a culture and which are not. In fact, precision here is not only unnecessary. It is also unwanted. Sometimes certain sorts of features are crucial to a culture. In other cases, these sorts of features are inessential and other sorts of features are important. In order for the concept of culture to have an application it is sufficient that identifiable groups of people have certain traits ( beliefs, customs, achievements, and so on) which distinguish them from other groups. Although (as we shall see in a moment) the concept of culture has come under attack in recent years, it seems incontrovertible that groups of people share beliefs, customs, knowledge (including knowledge about the arts), artistic practices, and so on, which other groups of people do not possess. On both of the definitions of ‘culture’ given above, the term refers to an abstract object. This is a set of beliefs, achievements, customs, and so on that is characteristic of a group of people. I do not object to the word being used in this way, but I will use it in an extended sense as well. As I will use the word, a group of people who share a set of traits not only share a culture. They also are a culture. That is, ‘culture’ refers both to certain traits of a group of people and to the people who share these traits. I will say that individuals who share some culture participate in that culture. The concept of culture has come under attack in recent years from a number of quarters. One sort of question is concerned about what sorts of characteristics contribute to a group’s culture. Some have seen the concept of culture as elitist and imperialist. That is, some writers have held that achievements are only regarded as cultural when they resemble the high art achievements of Western societies. Feminists have complained that the achievements of women are frequently excluded from the list of characteristics that compose a group’s culture. Rest assured that, as the concept of culture is employed in this essay, it is not being used to promote any objectionable ideological program. Indeed, as will shortly emerge, I have a very broad conception of what counts as a culture and I am liberal about what traits can help define a culture. 9

10

Tylor (1871), vol. 1, p. 1.

What Is Cultural Appropriation?

Kwame Anthony Appiah has recently raised another sort of question about culture. He has wondered about the usefulness of the concept in a world where cultures increasingly overlap. He notes that contemporary concern about cultures and their preservation has led to some peculiar outcomes.10 Certain groups in the United States (Appiah mentions middleclass African-Americans, and some immigrant groups) have become increasingly concerned about the recognition of their cultural distinctiveness at the very time that they are more and more fully integrated into a homogenous society. Appiah also notes the futility of trying to preserve traditional cultures in the modern world. The attempt to do so is sometimes bitterly ironical. Franchised casinos, for example, are used to fund the ‘preservation’ of traditional Native American cultures. Denis Dutton has discussed similar oddities that arise from attempts to preserve indigenous cultures. The Huichol culture of northwest Mexico once produced artifacts for use in their traditional rituals. Similar artifacts are now made, albeit with chemical dyes and other modern materials, for sale to tourists.11 Dutton mentions the Huichol, but a similar point could be made about almost any colonized indigenous culture. Appiah notes that the West has exported the concept of culture to the rest of the world. “All over the world . . . ,” he writes, “some variant of the Western term has been appropriated by other peoples: this Amazonian and that Solomon Islander find that they have a ‘culture.’ ” The world ‘culture’ has been appropriated by Appiah’s native language (AsanteTwi) as the noun ‘ko¯kya’, (pronounced ‘ko-cha’).12 Sometimes the West has done more than export the concept of culture. Sometimes it has created certain groups as a way of advancing colonial policy. This has occurred, sometimes with tragic results, in central Africa. Other groupings rise out of political struggles in post-colonial societies. According to Appiah, in Ghana, Akan identity has arisen as a reaction to other people beginning to conceive of themselves as Ewe. These points cannot be disregarded. Still, the observations of the previous paragraphs do not show that the concept of culture has no application. Let me first address the suggestion that cultures are theoretical or political creations. Western anthropologists such as Tylor may have developed the concept of culture. It does not follow from this premise that the concept of culture is somehow problematic. Members 10 11 12

Appiah (2005), ch. 4. Dutton (1993), pp. 13–21. Appiah (2005), p. 119. 11

What Is Cultural Appropriation?

of certain groups of people are more likely to have certain beliefs, attitudes, and customs than are members of other groups. Long before any anthropologist started to think about the distinction, there was a difference between the customs, beliefs, and arts characteristic of Scottish Highlanders and those of the Highlanders of New Guinea. Colonial administrators certainly have taken advantage of differences between subject peoples. More recently, unscrupulous politicians in newly independent nations have sought to exacerbate differences for political gain. But, once again, it does not follow from any of this that real cultural differences do not exist between various groups. In any case, colonial administrators and politicians seem more likely to identify ethnic differences than to distinguish cultures. (Even Appiah speaks of the creation of “ethnicities” and “political identity” rather than the creations of cultures.) Turn now to a consideration of the second sort of issue raised by Appiah and others. They certainly show that cultures are mutable and that they blend together or interpenetrate. Their edges are blurry. This leads to certain difficulties. Although the general concept of culture is clear and unobjectionable enough, we will face difficulties when we try to define a particular culture. We can know what a culture in general is but still have difficulties defining, say, Greek culture or Huichol culture. This was already implied by the Oxford English Dictionary definition of culture. We have to take to heart the phrase, “at a certain stage of . . . development or history.” We speak of Greek culture, for example, but clearly the culture of the ancient Greeks differed dramatically from that of modern Greeks. Ancient and modern Greeks do not share a religion, economic activities, form of government, mutually intelligible language, or customs. They do not even share all of the same artistic achievements since, even if modern Greeks may be said to share the artistic achievements of the ancients, the ancient Greeks plainly do not share in the artistic achievements of modern Greeks. Even though cultures are constantly evolving, it seems clear that a culture can remain identical through time. Cultures are seldom, if ever, static and unchanging, and yet it makes perfect sense to talk of two people at different times sharing the same culture. The cultures in the modern world most concerned about appropriation (indigenous and minority cultures) are no more immune from change than any others. Indigenous cultures have changed dramatically as they have been increasingly integrated into a global economy. Sometimes these cultures have become involved in activities completely foreign to the traditional activities of the culture. Golf courses, casinos, and estate 12

What Is Cultural Appropriation?

wineries have little to do with the traditional cultures of individuals and groups that now own and operate them. It does not follow from this that some indigenous culture is not distinct from a majority culture. A culture can change and yet remain distinct from other cultures. It does not even follow from the fact that a culture has become more similar to other cultures that it is not still distinct. Mutability is one feature of cultures that makes them difficult to individuate, but it is not the only source of difficulties. Cultures overlap and intersect in various complex ways. A single person may belong to a variety of cultures simultaneously. For example, a person may be said to share in European culture, British culture, Scottish culture, Highland culture, Christian culture, and so on. Immigrants and colonized peoples may find themselves sharing in two or more cultures, some adopted, some, perhaps, imposed. Children may have parents from distinct cultural groups and find themselves with a foot in both. This is as true of artists as it is of anyone else. Let us not forget that Joseph Conrad, although among the greatest of English novelists, was born Jósef Teodor Konrad Korzeniowski. Often described as Polish, he was actually born in a part of the Ukraine that had once been part of Poland but was then under the rule of Russia. Michael Ondaatje is an icon of Canadian culture, but he was born and raised in Sri Lanka. Bill Reid, the most celebrated Haida artist of the last century, was the son of a Haida woman and an American man of mixed Scottish and German ancestry. Reid’s assimilated mother hid his Haida heritage from him and he was unaware of it until he was into his teens. It will not be easy to identify with certainty the cultural groups to which these individuals belong and do not belong. The boundaries between cultures have never been hard and fast. There is an analogy between cultures and languages. Languages shade off into each other. One could once travel from the Netherlands to Castile without finding adjacent villages that could not understand each other’s language. To a certain extent, this is still true. The Dutch spoken in border regions of the Netherlands can be a lot more like German than is the Dutch used on BBC broadcasts. Languages in other parts of Europe similarly still shade off into each other. Cultures are certainly very much the same and shade off into one another. This overlapping of cultures can lead to difficulties in assessing acts of appropriation. In defining a culture we are also identifying the individuals who belong to the culture. A definition of a culture identifies a group of insiders and distinguishes them from outsiders. If we cannot 13

What Is Cultural Appropriation?

identify someone definitively as an insider or an outsider with respect to a given culture, we may not be able to determine whether a specific action is an act of cultural appropriation. If so, even if we had reason to believe that certain types of cultural appropriation are wrong, we could be unable to determine of a particular action whether it was wrong. These points must be taken seriously and the mutability and intersection of cultures will have an impact on the deliberations in this essay. In particular, it may be difficult to determine whether an act of cultural appropriation has occurred. Consider, for example, the appropriation of an Italian musical style by Handel or Mozart. From one perspective this counts as cultural appropriation while from another it does not. One could hold that when Mozart borrowed a style from Martini this is a case of a cultural German appropriating from Italian culture. Alternatively, one could maintain that certain musical idioms that originated in Italy became characteristic of a larger European culture and that, in helping themselves to these musical ideas, Germans were not engaged in cultural appropriation. Stephen Davies discusses a similar example from the south Pacific. Musicians from American Samoa have appropriated Tongan lakalaka without thinking of doing so as cultural appropriation. These musicians see Samoans and Tongans as sharing Polynesian culture.13 All of this said, I do not believe that the mutability and overlapping of cultures undermine talk of cultures and cultural appropriation. Very often, talk of this or that culture is completely cogent and unobjectionable. Sometimes it will be clear that an act of cultural appropriation has occurred. My approach to understanding the concept of a given culture may be characterized as Wittgensteinian. Cultures change and their edges are not hard and fast. Nevertheless, talk of a specific culture, such as American culture or Navajo culture, is perfectly comprehensible and unproblematic. Ordinary language, Wittgenstein assured us, is in order as it is. In ordinary language we speak of Greek culture, Navajo culture, Chinese culture, and a host of other cultures. If ordinary language is in order, we are making sense when we speak in this manner. It can make perfect sense to say that two people belong to different cultures and that a person has engaged in cultural appropriation by taking something produced in the context of another culture. That said, we need a Wittgensteinian way of understanding how speaking of cultures makes sense. Given the mutability and interpenetration of cultures, we cannot give necessary and sufficient conditions for 13

14

Davies (2001), p. 265.

What Is Cultural Appropriation?

membership in, say, Haida culture. That is, no characteristics can be identified that individuals must have before we can say that they are culturally Haida. Neither is any characteristic enough to ensure that someone belongs to the culture. Another way to put this point is to say that cultures do not have an essence. That is, there is no essential characteristic possessed by everyone who is properly categorized as participating in Haida culture. If cultures cannot be defined in terms of essences, we need another way of conceptualizing them. Here Wittgenstein’s notion of a family resemblance concept comes to our aid. Wittgenstein thought that no property is shared by, for example, all games. Games have a variety of properties. Some are played on a board, some have two teams, some have winners and losers, some require the use of a ball, and some are played in a field. No game, however, has all of these characteristics. There is no property that an activity must possess in order to count as a game. Neither is there any property which, if possessed by an activity, is sufficient to make it a game. Nevertheless, we can conceive of games. We do so because we can grasp that something is a game when it possesses enough of some range of properties, none of them either necessary or sufficient for gamehood. No game possesses all the properties associated with games. Something is a game if it possesses a sufficient number of a certain range of properties. The concept of a culture is a family resemblance concept. A culture is simply a collection of people who share a certain range of cultural traits. Perhaps no member of the culture has all of the traits associated with the culture. Consider, for example, Canadian culture. It is to be defined in terms of a set of cultural traits, including but not limited to being passionate about ice hockey, being suspicious of American foreign policy, valuing universal health care, having an opinion about the future of the CBC (Canadian Broadcasting Corporation), knowing (some of ) the words to Oh, Canada, being committed to parliamentary democracy, caring about a new book by Margaret Atwood, and so on. There is such a thing as Canadian culture, even if no individual possesses all of the cultural characteristics just listed. Anyone who possesses enough of these characteristics counts as participating in Canadian culture. Such an individual is an insider relative to Canadian culture and an outsider relative to others. I am not in the least fussy about how people divide up cultures. I am quite happy to allow that any group of people, each of whom has a significant subset of some set of cultural traits (including language, knowledge of artistic genres, religion, customs, and so on), counts as a culture. Most people will belong to several cultures at a time. Some of the cultures 15

What Is Cultural Appropriation?

with which we will be concerned have a geographical base. Navajo culture would be an example. Some cultures will lack such a base. AfricanAmerican culture is an example of such a culture. I am quite happy to countenance talk of gay culture or deaf culture. The culture of gay men can be defined in terms of a range of practices, customs, and beliefs, many of which are possessed by each homosexual man. These traits include an unusually extensive knowledge of Judy Garland movies, owning an uncommonly natty wardrobe, being able to tell whether something is chartreuse, owning some spandex, and so forth. As is the case with national cultures, no member of gay culture (to be fair, I have identified traits of a certain gay subculture) has all of these traits but any given individual will have some of them. Someone could still object that there will be hard cases where it is difficult to say whether or not someone is an insider or an outsider relative to a given culture. This is certainly true. Nevertheless, even if sometimes it is difficult to determine whether someone is an insider or an outsider, on other occasions it is perfectly clear who is who. When Paul Simon gets off an airplane in South Africa, and proceeds to appropriate the music of the townships, he is clearly an outsider. Or imagine an Anglo-Australian painter, born and raised in the suburbs of Melbourne and trained at the Victorian College of the Arts. If this person starts painting in the style of the Ganalbingu people, we can be quite sure that he is an outsider for the purposes of determining whether cultural appropriation has occurred. In writing The No. 1 Ladies Detective Agency (1999) and its sequels, Alexander McCall Smith is clearly writing about a culture other than his own (even though he lived in Botswana for a time). The claim that he is engaged in subject appropriation is uncontroversial. In denying that cultures can be defined in terms of necessary and sufficient conditions I am treading on some sensitive territory. One can argue that at least one necessary condition must be satisfied before someone counts as sharing in certain cultures. One could hold that certain cultures are tied to certain ethnic groups. One might hold, for example, that a person cannot be a member of African-American culture without having an African genetic heritage. The argument would begin with the premise that only individuals who have had certain experiences can belong to the culture. The next premise would state that these experiences are only available to people with a certain ethnic background. Certainly this premise is plausible in certain cases. One can argue that only people with a certain complexion can have had the experience of persistent, lifelong discrimination in America. The relationship between culture 16

What Is Cultural Appropriation?

and ethnicity is one to which we will have to return in the context of a later discussion of cultural appropriation. In general, however, linking culture and ethnicity is dubious. Certainly many cultures have nothing to do with ethnicity. A variety of people of diverse ethnic backgrounds may yet share in the same culture. Someone can fully participate in English culture and yet be an ethnic Greek, Jew, or Pakistani. Jerome Iginla (son of a Nigerian and captain of the Calgary Flames hockey team), Michaëlle Jean (once a refugee from Haiti and currently governor general of Canada), Michael Ondaatje (the Sri Lanka-born novelist) participate in Canadian culture despite their diverse ethnic backgrounds. People with the same ethnic background can be culturally diverse. For example, two Americans of African descent can have the same ethnic background but have different cultures. One might live in New Orleans’ Ninth Ward, listen to rap music and play basketball. The other might be a Boston lawyer who attends early music concerts and Bruins home games. On many ways of individuating cultures, these two individuals will turn out to belong to different cultural groups. Moreover, an ethnic group is just as fluid and rough-edged as is any culture. Reference to ethnicity will not introduce any precision into talk about cultures. As is apparent by now, I have chosen to frame the debate about appropriation in terms of appropriation from a culture. Sometimes, however, a culture may be more or less coextensive with another sort of entity. This might be a nation (say, Iceland or the Navajo nation) or a clan (say an Australian aboriginal clan such as the Wamba Wamba or Ganalbingu). Talking of appropriation from nations or clans has certain advantages over talking of cultural appropriation. It may be possible to specify ( by reference to citizenship records or clan membership lists) precisely who does or does not belong to a group. There may then be no controversy about who is affected by an act of cultural appropriation. I prefer to conceive of the issue under consideration as appropriation from a culture. Talk of cultural appropriation captures more accurately what is at issue than does talk of appropriation from a nation, a clan, or anything else. This is the case for two reasons. For a start, many nations are multicultural. An act of appropriation can happen within the boundaries of a nation, and yet be a case of cultural appropriation. As well, some cultures (for example, African-American or Yiddish culture) do not have a corresponding nation or clan. Nothing is lost by speaking of appropriation from cultures. Generally, a nation or clan will have a distinctive culture. Consequently, talk about cultural appropriation will encompass those cases where something is appropriated from a clan or nation. 17

What Is Cultural Appropriation?

Objections to Cultural Appropriation We now have some understanding of the concept of cultural appropriation. Turn now to the question of how one might object to the practice of the various forms of cultural appropriation. As noted above, one might object to cultural appropriation on either aesthetic or moral grounds. In this section I will begin by considering the moral objections that could be brought against cultural appropriation. I suggest that an act of cultural appropriation may be wrong in two ways. It may cause unjustifiable harm or it may be unjustifiably offensive. Acts of cultural appropriation could cause harm in at least two ways. Someone could appropriate something that belongs to members of another culture. That is, some acts of cultural appropriation could be acts of theft. On the other hand, cultural appropriation could harm members of a culture without depriving them of anything they own. The economic, educational, or other opportunities of insiders could be set back. Worst of all, perhaps, their ability to preserve their culture could be restricted. As the word ‘appropriation’ was originally used, no moral stigma was attached to it. One did not necessarily act wrongly when one engaged in appropriation. In its original use, the word usually referred to taking something from nature. An individual who picked an apple in the wild was said to have appropriated it. The apple was in a state of nature, that is, without an owner. Most philosophers have thought that anyone who appropriates an apple from a state of nature does not act wrongly under most circumstances. Some appropriation, of course, is suspect. If I take as my own an apple that belongs to you, and I do so without your permission, then a prima facie reason exists for thinking that I have acted wrongly. (Note, we have only a prima facie reason for thinking so. I may be justified in taking an apple from your orchard, without your permission, if only by doing so can I save the life of a child.) Some acts of appropriation are permissible, while others are not. The same can be said about acts of cultural appropriation. It is easy to identify some instances of cultural appropriation that are plainly unobjectionable. A tourist from Japan walks into a shop in Darwin or Santa Fe and buys a painting by an indigenous artist. In such a case, almost always nothing objectionable has occurred. This is an example of benign object appropriation. (I assume that the artist voluntarily chose to sell the work. He was not coerced overtly or by financial circumstances. I also assume that the art dealer had the authority to sell the painting.) Or suppose that an artist receives from a competent authority freely given permission to 18

What Is Cultural Appropriation?

use stories or songs that have been developed in a culture. We would have a case of unobjectionable content appropriation. On the other hand, it is easy to give examples of appropriation that are obviously wrong. Consider, for example, the appropriation of the great works of art produced for the Oba (King) of Benin.14 These works of art included a series of magnificent bronzes produced for and only for the Obas of Benin over a number of centuries. Perhaps unwisely, the struggle of the Edo people (as they call themselves) to maintain their independence included the ambush of a British vice-consul. The ensuing punitive expedition of 1897 resulted in the seizure of virtually all of the bronzes. These are now found in museums and private collections around the world. Many are in the British Museum. (Some were sold back to Nigeria after it became independent. The present whereabouts of these bronzes is unclear.) As is universally believed by international jurists, and is besides pretty obvious, works of art are not lawful plunder or spoils of war.15 British soldiers may have been justified in confiscating the weapons of the Edo, but they had no business stealing their sculptures. The appropriation of these sculptures was morally equivalent to a bank heist. The case of the Zuni War God figurines provides us with another clear case of immoral cultural appropriation. Each year members of the Zuni people of the American south west commission the carving of two War Gods (or Ahayu:da), which are believed to guide and protect the tribe. At the end of a year, the figurines are taken into the wilderness and left exposed to the elements. The Zuni people believe that the War Gods must be allowed to decay so that their powers may return to the earth. Crucially, the figurines were not abandoned. (I will discuss the appropriation of abandoned property in Chapter 3.) Over the years, anthropologists and others recovered many of the figurines and they found their way into museums and private collections. This was clearly wrong. (Fortunately, this story has a happy ending. The rights of the Zuni have been recognized by American courts. Most of the figurines have now been repatriated.) The appropriation of the Benin bronzes and the Zuni Ahayu:da are straightforward examples of the first way in which acts of cultural appropriation can be wrong. They can be acts of theft. The Edo and the Zuni owned works of art that were taken without their permission. (The Edo 14 15

For an account of this travesty, see Greenfield (1989), pp. 141ff. For a sampling of legal opinion on this matter, see Greenfield (1989), pp. 281f. 19

What Is Cultural Appropriation?

claim to own the bronzes has a different basis than the Zuni’s claim on the Ahayu:da. The Zuni claim is straightforward: acting through political institutions, they bought and paid for the sculptures in question. The Edo claim on the bronzes is more complex since the works were originally the private property of the Oba. Their claim to the bronzes will have to be based on a strategy explored in Chapter 3. This strategy begins with the claim that the value of some item to all members of a culture can give the culture as a whole a claim on the item in question.) The cases of appropriation from the Zuni and Edo cultures are both examples of object appropriation. Several writers have advanced the view that certain acts of content appropriation are acts of theft. Lenore KeeshigTobias, a Native American author and storyteller, has written about the retelling of traditional aboriginal stories by non-aboriginal authors. She states that the non-native “cultural industry is stealing – unconsciously, perhaps, but with the same devastating results – native stories as surely as the missionaries stole our religion and the politicians stole our land and the residential schools stole our language.”16 Amiri Baraka similarly believes that members of mainstream American culture have stolen from African-Americans by engaging in style appropriation. He regards the blues as “the basic national voice of the African-American people.” Non-African-Americans have appropriated this music in what Baraka calls the “Great Music Robbery.” He implies that this robbery is simply a continuation of a long tradition that began with the enslavement, itself a kind of theft, of Africans.17 The result of the theft has been that cultural mainstream (white) musicians have reaped profits that rightly belong to members of African-American culture. Similarly, the critic Ralph J. Gleason has maintained that the “blues is black man’s music, and whites diminish it at best or steal it at worst. In any case, they have no moral right to use it.”18 Here the appropriation is represented as occurring across ethnic lines. The same point could be made in terms of African-American and mainstream American culture. Similar arguments have been directed against the appropriation of elements of aboriginal art by non-aboriginal Australians. Even acts of subject appropriation have been regarded as acts of theft. Keeshig-Tobias has written about Kinsella’s stories set on the Hobbema reserve and Bruce Pittman’s Where the Spirit Lives (1989), a film concerned 16 17 18

20

Keeshig-Tobias (1997), p. 72. Baraka and Baraka (1987), pp. 226, 328. Ralph J. Gleason, quoted in Rudinow (1994), p. 127.

What Is Cultural Appropriation?

with the experience of aboriginal students in residential schools. She maintains that, “the real problem [with these works] is that they amount to culture theft, the theft of voice.”19 Her point is that members of nonaboriginal cultures ought not to tell stories about (or otherwise represent in works of art) aboriginal cultures. This implies that a subject matter belongs to members of the culture. I have already expressed skepticism about the view that a subject matter can be owned. Not all acts of theft across cultural boundaries are of interest to us. Imagine, for example, that a Frenchman or a Brazilian (that is, someone who comes from a culture other than my own) breaks into my house and makes off with some etchings I have made. This is just common-orgarden-variety theft. The fact that the thief is from one culture and the victim from another is not relevant in analyzing what is wrong about the act. Or suppose that I have recorded a CD of my original compositions and a pirate edition is brought out in China. The fact that the pirates belong to a different culture is not really an interesting feature of the act of piracy. If my copyright had been violated by some criminals who are culturally indistinguishable from me, their act would be just as wrong, and wrong for the same reasons. In order for an act of theft to be wrong qua act of cultural appropriation, it has to be stolen from a culture, not from an individual member of the culture. The appropriation of the Benin bronzes was wrong, qua act of cultural appropriation, if something was stolen from an entire culture. I will not consider cases such as the exploitation of individual musicians by large corporations. I have in mind the dispute between the family of Solomon Linda, composer of the song “The Lion Sleeps Tonight,” and Disney. Linda was a Zulu from South Africa and the corporation that apparently violated his rights to the song was American. (At least, an out-of-court award was made to Linda’s descendents.) Here, however, we just have a case of an individual being exploited by a large corporation. We do not have to characterize the appropriation as an act of cultural appropriation to know that it is wrong. Similarly, I will not discuss the exploitation of pioneering African-American blues artists by non-African-American individuals and corporations. I have in mind, for example, the apparent exploitation of Muddy Waters by Leonard Chess. No one is likely to defend the appropriation of the Benin bronzes or the appropriation of the Zuni War God figurines. Certainly I will not. 19

Keeshig-Tobias (1997), p. 71. 21

What Is Cultural Appropriation?

Sometimes acts of theft are defensible. A father may steal a loaf of bread (from someone with lots of bread) if it is the only way to feed his children. He does not act wrongly. The father is excused by necessity. (Here, as elsewhere in this essay, I am concerned with moral, not legal, questions. That is, I am interested in the question of when cultural appropriation is morally wrong, not when it is illegal. Legality varies from culture to culture. Morality is universal.) I find it difficult to imagine a scenario where an act of cultural appropriation can similarly be excused by necessity. Perhaps one could construct some far-fetched cases where artists can only support their families by violating property rights of a culture other than their own. I will discount this possibility and regard any instance of cultural appropriation that is an act of theft as wrong. The trick will be to determine which acts of cultural appropriation are acts of theft from a culture. In order to make this determination we need to determine how and when a culture as a whole has a claim on ownership of a work of art. A large part of Chapter 3 will be devoted to an exploration of how a culture can acquire ownership of a work of art or of artistic elements. This chapter will also investigate what sorts of things a culture can own. If a culture owns some property, the only remaining question is that of whether a competent authority within the culture has freely sanctioned the transfer of the item to someone outside the culture. When a competent authority within a culture freely sanctions the transfer of some property to members of another culture, no theft has occurred. When we are considering cultural appropriation qua harmful act of theft, philosophically interesting questions arise in two ways. Both sorts of questions arise from the supposition that a culture owns some work of art or an artistic element (and so its appropriation by outsiders, without the permission of a competent authority, is wrong). This claim could be challenged in two philosophically interesting ways. In the first, one might hold that, although the item claimed by a culture is the sort of thing that it might own, in fact it is not the owner. That is, one might dispute the culture’s claim on the work by saying that it is not (unlike the Zuni claim on the Ahayu:da) well founded. As we will see, a number of interesting and difficult questions arise when we ask whether a culture owns some item. The second philosophically interesting way to challenge a culture’s claim on some item is to say that the property the culture is alleged to own is not the sort of thing that a culture can own. Particularly interesting questions arise when we consider the ownership of traditional stories, styles, designs, patterns, and so on. It will not 22

What Is Cultural Appropriation?

always be easy to determine whether these are the sorts of things a culture (or anything or anyone else) can own. For an example of the first sort of case, consider the appropriation of the Parthenon Marbles.20 One might say that the appropriation of these sculptures was wrong because they belonged to Greek culture and Lord Elgin did not have the proper authorization to remove them. Elgin had a permit from the Turkish governor, but many people say that he was not competent to grant permission. They claim that the rightful owner was Greek culture. Let us consider this claim. The trouble is that the Marbles were not originally the property of Greek culture. The Parthenon was an Athenian civic building. Ancient Athenians would have rejected out of hand the proposition that Greek culture as a whole had a claim on the temple or its friezes. Nevertheless, one hears the suggestion that the Marbles now belong to Greek culture and they were wrongfully appropriated. Or consider the Flatejarbók, the medieval manuscript that records the voyage of Leif Ericsson to North America. In the eighteenth century Arne Magnussen, an ex-patriot Icelander, bought the manuscript fairly (so far as anyone knows) and gave it to the University of Copenhagen. At the time that Magnussen bought the Flatejarbók, it did not belong to Icelandic culture. It was the property of some individual and no one in Iceland cared much about it. Now it is considered to be the property of Icelandic culture and Iceland successfully lobbied for its return to the island. In the other philosophically interesting cases questions arise about whether something is the sort of thing that a culture can own. Some of the most interesting and controversial cases of cultural appropriation involve the use by outsiders of styles, patterns, designs, plots, and motifs that insiders regard as the property of their culture. Questions about what can be owned can arise because different cultures have different legal regimes. In cultures where ownership of intellectual property is governed by the principles of the Berne Convention, something like a general plot, style, pattern, or design cannot be owned. As well, only something with an identifiable creator can be owned and ownership (that is, copyright) expires after a term. In some cultures, in contrast, certain traditional stories (whose originators are unknown) are held to be the collective property of the culture. In some aboriginal Australian cultures styles and designs are regarded as the property of a clan. Some 20

For the con side of this legal debate see Merryman (1985). For the pro side see Moustakas (1989). 23

What Is Cultural Appropriation?

cultures maintain that they have a perpetual claim on certain stories or patterns, often because these have spiritual significance. These questions will be addressed in Chapter 3. Insiders could be harmed by means other than theft and I will turn to an examination of other forms of harm in Chapter 4. In simple cases, cultural appropriation could wrongfully interfere with the economic, educational, or other opportunities of insiders. In more complex and potentially serious cases, cultural appropriation could harm people by harming their culture. Arguably, this is a much more serious sort of harm than any theft could be. (Theft could contribute to the undermining of a culture.) Just as the sort of harm discussed in Chapter 3 may be classified as a sort of theft, the sort of harm discussed in Chapter 4 may be regarded as analogous to assault or battery. Many writers have argued that a people’s culture is culture is essential to their well-being. Will Kymlicka maintains that membership in a culture is, in John Rawls’ sense of the word, a primary good.21 Charles Taylor has adopted a similar position. He maintains that the preservation of a cultural identity is absolutely essential. Nothing, he writes, “is more legitimate than one’s aspiration that it never be lost.”22 Avishai Margalit and Moshe Halbertal hold that all people have a right to their culture.23 I will take it as a given that all of these authors are right. The question at issue is how cultural appropriation could harm a culture and perhaps even threaten its viability. Several lines of argument can be identified. The first sort of argument focuses on what I have called subject appropriation. This argument begins with the premise that outsiders who engage in subject appropriation are bound to misrepresent insiders and their culture. These misrepresentations can be harmful in a variety of ways. Most obviously, outsiders could create or perpetuate harmful stereotypes that hurt members of a culture. For example, old Hollywood Westerns represent Native Americans as cruel and mendacious. Disney’s Peter Pan (1953) so grotesquely misrepresents members of North American First Nation cultures that I will not let my children watch it. Distorting stereotypes could harm members of a culture in several ways. Members of the culture could be subjected to discrimination in employment or education. This could, in turn, give rise to economic problems that 21 22 23

24

Kymlicka (1991), p. 167. Taylor (1994), p. 40. Margalit and Halbertal (1994).

What Is Cultural Appropriation?

make it difficult for a culture to sustain itself. Most insidiously, insiders could begin to see themselves as others see them and their culture can be distorted. Content appropriation could have similar harmful effects. Imagine that outsiders clumsily appropriate the styles of insiders. There is a danger that the aesthetic rubbish that the outsiders produce will give a wide audience a false picture of the insiders’ culture. Kitsch produced by outsiders may expose the insiders’ culture to ridicule and worse. More subtle but ultimately, perhaps, more dangerous sorts of harm may result if outsiders appropriate artistic elements from insiders. Imagine that members of a large culture start to perform music characteristic of a small minority culture. Imagine, however, that the outsiders perform the music in a way that is subtly, or perhaps not so subtly, different from the ways in which the insiders perform. The outsiders’ performances are influenced by their own culture. Under these circumstances, there is a danger that members of the minority culture, exposed to performances by outsiders, will begin to perform as the outsiders do. The distinctness of the minority culture may, consequently, be eroded. Cultural appropriation could also harm by depriving insiders of audiences for their works of art. Potentially both the content appropriation and subject appropriation could deprive insiders of an audience. The argument would be that audience members will devote their attention to a limited number of works of a given genre. The genre might be characterized in terms of its subject matter. So one could argue that the market for books or films about Australian aboriginal peoples is strictly limited. Each time outsiders produce a work on this subject, one could go on to maintain, the probability that works by insiders on this subject will find an audience is decreased. Similarly, one could maintain that works in a given style, say a jazz style such as bebop or the blues, have only a limited audience. If so, when outsiders appropriate content, they harm insiders by depriving them of an audience and the economic benefits of this audience. The general conclusion of Chapters 3 and 4 is that some instances of cultural appropriation wrongfully cause harm to individual members of a culture. I am skeptical about the suggestion that significant harm is done to cultures as a whole. Much cultural appropriation is completely benign. Indeed, as I will suggest later in this chapter, some of it has a great deal of social value, including value for cultures from which something is appropriated, and this must be taken into account when assessing acts of cultural appropriation. 25

What Is Cultural Appropriation?

Even if an act of cultural appropriation is not harmful, it might still be wrong. The act could be, in Joel Feinberg’s sense of the word, profoundly offensive. An action is harmful if it is a direct setback to someone’s interests. Acts of theft are clear cases of harm. To deprive people of property that is rightfully theirs is to harm them by hindering them in the pursuit of their ends. If people are deprived of their culture, they are also, perhaps more seriously, harmed. An act of cultural appropriation may, however, not deprive insiders of their culture. Their artistic practices may not be distorted by the activities of outsiders. Still, insiders may find acts of cultural appropriation offensive. When one is offended, one is put into a temporary state of mind that one finds unpleasant, but one suffers no long-term setback to one’s interests. Insiders may be put into an unpleasant state of mind when they are aware that outsiders are appropriating their culture. They may be appalled, disgusted, insulted, or outraged. If certain acts of appropriation are an affront to their culture, we may say that the actions are profoundly offensive. An act of cultural appropriation could be offensive for a variety of reasons. It might be sacrilegious. The manner in which outsiders have used materials may be inappropriate by the standards of insiders. For example, symbols with religious significance might be used disrespectfully. Andres Serrano’s Piss Christ (1989), a photograph of a crucifix immersed in the artist’s urine, is offensive in this way. (This is not necessarily a case of offensive cultural appropriation. It is intended simply as an example of how use of a religious symbol can be offensive to members of a culture, in this case Christian culture.) Alternatively, an act of appropriation could be offensive because it misrepresents the culture of insiders. Above I mentioned the possibility that subject appropriation could harmfully misrepresent a culture. Even if the culture and its members are not harmed by a representation that distorts the culture, it could still be insulting and offensive. The production by outsiders of performances or artworks in the style of insiders may in itself be offensive. For example, some Australian aboriginal cultures regard the representation of certain stories by outsiders as deeply offensive. In these cultures only properly initiated persons are allowed to paint certain subjects. In Chapter 5 I will consider the case against cultural appropriation that is based on the premise that it can be profoundly offensive. Consideration of profound offence will not yield a general case against cultural appropriation. Many acts of cultural appropriation are not profoundly offensive. Others are profoundly offensive but nevertheless morally unobjectionable. I will conclude that some acts of cultural 26

What Is Cultural Appropriation?

appropriation are wrong because they are profoundly offensive. Usually this will be because artists have violated certain reasonable time and place restrictions. Notice that sometimes the moral case against cultural appropriation rests on an aesthetic premise. An argument for the immorality of an act of appropriation can depend, for example, on the claim that the act results in a work of art that harmfully distorts a culture. Or an argument against cultural appropriation can depend on the claim that outsiders will (or will tend to, or will inevitably) produce works that expose insiders to ridicule. Since the moral case against cultural appropriation can depend on an aesthetic premise, Chapter 2 of this essay is devoted to considering the aesthetic case against cultural appropriation. Quite independently of any moral implications, the question of whether artists can successfully appropriate styles and other artistic content from other cultures is interesting. The aesthetic case against cultural appropriation can often be summed up in a single word. Works produced by cultural appropriation are, in some sense of the word, inauthentic. Perhaps a musician, born and raised in some middle-class suburb, somehow cannot authentically perform the blues. Or a Anglo-Australian painter cannot authentically paint in the style of some aboriginal culture. Perhaps novelists somehow cannot authentically capture the lives and experience of members of other cultures. In Chapter 2 I will investigate the senses in which works of art that arise out of cultural appropriation might be inauthentic. This process will not be easy since the word ‘authentic’ has several meanings. I will go on to consider how each sense of authenticity affects the aesthetic properties of artworks that involve cultural appropriation. I will arrive at the conclusion that, in most senses of the word relevant to the aesthetic evaluation of artworks, there is no reason why artists who engage in cultural appropriations cannot produce authentic works.

In Praise of Cultural Appropriation Cultural appropriation, it will emerge in this essay, is not something about which it is easy to generalize. Sometimes cultural appropriation is theft. Some acts of cultural appropriation are clearly wrong because they give rise to works of art that are harmful in other ways. Sometimes the very act of engaging in cultural appropriation can be wrong because it is profoundly offensive. But then other acts of cultural appropriation 27

What Is Cultural Appropriation?

are morally benign. Some works of art are aesthetic failures precisely because an artist has appropriated content in a clumsy and ineffective manner. Other artists appropriate content and create masterpieces. A goal of this essay is to show that there can be no blanket condemnation of cultural appropriation. This is important, I believe, because cultural appropriation is important to the flourishing of the arts in the contemporary world. Let me give a few examples of how cultural appropriation can lead to the production of valuable works of art. The transfer of general ideas and styles from culture to culture bears valuable fruit and is found in surprising locations. African-Americans often complain about the appropriation of jazz and blues music but African-American musicians sometimes engage in style appropriation of their own. Consider, for example, Herbie Hancock’s album, Headhunters (1973). This is one of the masterpieces of jazz and was, for a time, the best selling jazz album ever recorded. Since Hancock did not acknowledge his borrowings, few people know that he drew upon the music of an African culture. The piece “Watermelon Man” appropriates the hindewhu style developed by the pygmies of the Ituri Forest in central Africa. Hancock appropriated the style via the LP The Music of the Ba-Benzélé Pygmies (1966), a Unescosupported recording made by two French enthomusicologists, Simha Arom and Geneviève Taurelle. (This is not an isolated case. Jimmy Rowles and Leon Thomas were two other African-American jazz musicians who drew on pygmy music.) Hancock defended his use of Ba-Benzélé music on the grounds that “it’s a brother kind of thing” and “we’re all making African music.”24 The reality is that his culture has far more in common with middle-class Polish-Americans from Des Moines than it has in common with any pygmy culture. Hancock was definitely engaged in cultural appropriation. Indeed, he was engaged in unusually interesting and creative appropriation. Everyone has an interest in encouraging such creative appropriation. Hancock’s take on pygmy music subsequently influenced Madonna, the American pop diva. She used a short sample from Headhunters in her 1994 CD, Bedtime Stories. The French ensemble Deep Forest sampled the original recordings by Arom and Taurelle on their CD Boheme. Deep Forest’s project was enormously successful. It won a Grammy in 1995 and sold over 4 million copies. 24

28

Feld (1996), pp. 4–5.

What Is Cultural Appropriation?

Theodore Gracyk discusses another multiply iterated case of cultural appropriation in popular music.25 In 1950, Pete Seeger and The Weavers recorded “Goodnight, Irene,” an adaptation of “Irene” by Leadbelly. This appropriation from an African-American singer by members of mainstream American culture proved controversial at the time. Musicological research revealed, however, that Leadbelly’s copyrighted composition was not as original as it at first seemed. It was based on a Southern folksong that Leadbelly had learned from his uncle, Terrance Ledbetter. This song was, in turn, an arrangement of a waltz by the AfricanAmerican composer Gussie Lord Davis in the 1880s. Davis wrote for a largely white audience and the folksong Leadbelly learned from his uncle had been, in all probability, transmitted via non-members of AfricanAmerican culture. Of course, Davis had appropriated the waltz form from Viennese musicians. Clearly we do not have here a simple case of appropriation from African-American culture. Rather, artistic content that The Weavers finally appropriated had been passing in and out of African-American culture for a while by the time they produced their hit version of “Goodnight, Irene.” Shakespeare, perhaps not surprisingly, provides us with a wealth of illustrations of the aesthetic value of cultural appropriation. Shakespeare himself frequently practiced cultural appropriation of various forms. He engaged in subject appropriation (consider the representation of Moors in Othello and Jewish culture in Merchant of Venice). He appropriated artistic content from a variety of cultures, including those of the ancient Greeks and Romans. In turn, elements of Shakespeare have been appropriated by cultures around the world. His works have been translated into virtually every written language, including the Inuktitut language of Greenland’s indigenous population and the language of the Sami culture of northern Finland. Given this widespread dissemination of his works, it is not surprising that elements of the works have been widely appropriated. Consider, for example, the appropriation of Shakespeare in India. Sukanta Chaudhuri notes that, in most Indian languages, the Shakespearean presence in early modern drama ranges across a spectrum: from close translations to more or less free adaptations, and thence via occasional motifs, elements and echoes to

25

Gracyk (2001), pp. 84ff.

29

What Is Cultural Appropriation?

plays that may contain nothing authentically Shakespearean, but that could not have been conceived had their authors not been directly or indirectly influenced by Shakespeare. Shakespeare is the major generative force behind this entire body of dramatic literature.26

Bengali writers such as Rabindranath Tagore and Dwijendra Lal Roy drew freely on ideas from the English playwright. Writing in Hindi, Jaishankar Prasad produced history plays modeled on Shakespeare’s. Similarly, Lakshminath Bezbarua, a founder of modern Assamese literature, produced a trilogy of history plays loosely based on Shakespeare’s second tetralogy (Richard II, Parts I and II of Henry IV and Henry V). Writers in Gujarati, Marathi, Telugu, and other Indian languages also appropriated from Shakespeare. Cultural appropriation has had a particularly distinguished history in India. This history now stretches back over 2000 years. Consider the Greco-Buddhist school of art that flourished in Ganadhara from the time of Alexander the Great onwards. The first and, in the opinion of some authorities, most beautiful representations of the Buddha are thoroughly Hellenistic in style. The influence of European culture on the sculpture and architecture of India continued via the trade between Ganadhara and the Roman Empire. Indian artists also appropriated elements of Syrian and Persian art. In Japan, Kurosawa has been the most famous artist to appropriate from Shakespeare. Throne of Blood (1957) appropriates the plot of Macbeth. Ran (1985) sets King Lear in medieval Japan. In appropriating from the renaissance Englishman, Kurosawa produced aesthetic masterpieces. Again, the ripples of cross-cultural influences do not end with the Japanese filmmaker. He, in turn, influenced American cinema. For example, John Sturges’ Magnificent Seven (1960) is an adaptation of Kurosawa’s Seven Samurai (1954). Appropriation is often particularly controversial when the insiders are indigenous and the outsiders are not. Given that this is so, it is instructive to bear in mind the work of the young contemporary artist Brian Jungen. Among his works is a series of sculptures constructed from Nike running shoes. These sculptures are in the form of masks typical of northwest coast First Nation cultures. Jungen has also produced a sculpture that is in the form of a teepee, but constructed of black leather sofas. 26

Sukanta Chaudhuri, “Shakespeare in India,” Internet Shakespeare Editions. http:// ise.uvic.ca/Library/Criticism/shakespearein/india1.html.

30

What Is Cultural Appropriation?

Clearly Jungen has appropriated ideas from Picasso – compare Picasso’s Bull’s Head (1943) – and Marcel Duchamp. More interestingly, Jungen is an aboriginal North American, but his cultural background is Dunne-za. He is not a member of the Haida culture that produces the masks whose form he appropriates. Nor is he a member of a Plains Indian culture that produced teepees. Examples are so easy to find that one begins to suspect that virtually every artist engages in some sort of cultural appropriation. In music one immediately thinks of Turkish music, a style appropriated from the Janissary bands, composed by Rameau, Gluck, Haydn, Mozart, Beethoven, Rossini, and others. Nicola Matteis and Francesco Geminiani were among the Italian musicians who appropriated the “Scotch Humour.” In writing Macbeth, Verdi engaged in both content and subject appropriation. Among popular musicians, the examples of Simon, Clapton, Hancock, and Madonna have already been mentioned. In painting the subject appropriation in Ingres, Delacroix, and Gauguin immediately comes to mind. Painting is also the site of motif appropriation. Think of the appropriation of basic ideas in the impressionists (from Japan) and post-impressionists (Africa). In literature, subject appropriation may be said to have begun with Homer’s representation of the Trojans. Appropriation in novels is so commonplace that Margaret Drabble, in a book in which she appropriates the subject of eighteenth-century Korea, writes that, “appropriation is what novelists do. Whatever we write is, knowingly or unknowingly, a borrowing. Nothing comes from nowhere.”27 Virtually every contemporary tradition of indigenous art has appropriated artistic elements that originated in Western Europe. I could go on providing examples of artworks that are aesthetically valuable products of cultural appropriation, some of which are, in turn, successfully appropriated. These examples will take us only so far. They do not address all varieties of cultural appropriation. In this section I have made, for example, no mention of object appropriation. Moreover, a series of examples cannot by themselves address in a systematic way the full range of aesthetic and ethical issues that arise out of reflection on cultural appropriation. This systematic inquiry begins in the next chapter. Still, the examples I have provided give an indication of why everyone has an interest in avoiding a blanket condemnation of all acts of cultural appropriation.

27

Drabble (2004), p. ix. 31

The Aesthetics of Cultural Appropriation

Chapter 2

The Aesthetics of Cultural Appropriation

The Aesthetic Handicap Thesis In this chapter I leave aside ethics and focus on pure aesthetics. I will ask whether an artwork that employs appropriated content, or represents an appropriated subject matter, will necessarily have (qua product of cultural appropriation) aesthetic flaws. Potentially both interpretive and creative artists suffer from a handicap. For example, both a Westerner who performs Beijing opera and a Chinese who paints landscapes in the style of Monet could suffer from an aesthetic handicap. I will reach the conclusion that the works of artists who appropriate content or who represent other cultures in their works do not necessarily suffer from aesthetic flaws. On the contrary, artists who engage in cultural appropriation may produce works of considerable aesthetic merit. I will then turn to the question, in subsequent chapters, of whether artists ought to engage in cultural appropriation. Even if artists are able to produce aesthetically valuable works of art by engaging in cultural appropriation, perhaps they ought not to do so. This chapter is divided into seven sections. After this introductory section, I will consider the claim that works by outsiders have flaws that can be detected without any information about who produced them. In the third section I will consider and accept the proposal that at least some of the aesthetic properties of an artwork depend, in part, on the cultural context in which it was produced. This is to admit that the fact that artists have engaged in content appropriation can affect the aesthetic properties of their works. An argument can be given for the conclusion that the effect is negative. In the fourth section I present arguments for the claim that works by outsiders who engage in content appropriation are flawed because they are inauthentic. In the fifth section these 32

The Aesthetics of Cultural Appropriation

arguments are refuted. In the penultimate section, I turn to a consideration of subject appropriation. I argue that works that involve the appropriation of subject do not necessarily suffer from aesthetic flaws. In the final section I note that there is a sense in which artworks about other cultures can be inauthentic. They cannot be authentic expressions of some insiders’ culture. Even so, they may be successful works of art. Some readers may think it odd that the question of an aesthetic handicap would arise at all. They may think that it is impossible to estimate the chances of an artist producing an aesthetically valuable work without knowledge of the artist. That is, the success of artists who engage in cultural appropriation may be thought to depend on the skill, imagination, and insight of the individual artist. In the end, I will reach the conclusion that this (perhaps unremarkable) claim is true. Still, before reaching this conclusion, I need to address the suggestion that all artists, regardless of their abilities, face insurmountable obstacles when they engage in cultural appropriation. I will call this the aesthetic handicap thesis. This thesis is defended by several arguments. These arguments have been directed against both content appropriation and subject appropriation. Object appropriation is not discussed in this chapter since it does not involve the production of new works. In assessing the aesthetic handicap thesis, we need to bear in mind that aesthetic properties come in two varieties. Nelson Goodman famously wrote that, “the aesthetic properties of a picture include not only those found by looking at it but also those that determine how it is to be looked at.”1 Goodman limited his remarks to pictures, but presumably the same point applies to other sorts of artworks. Once we extend Goodman’s point to other classes of artworks, we would say that the first class of properties includes those that can be heard as well as those that can be seen. Presumably it also includes properties of literary works that are apprehended by intellectual experience. So the triteness or didacticism of a novel that readers can experience, without knowing anything about the circumstances of the work’s production, belongs to the first category. The second sort of property will include the categories to which artworks belong, and which influence the interpretation and evaluation of a work. In order to discover these properties of an artwork, audiences must do more than inspect the work. Audiences need to learn about the circumstances of the work’s production and, in particular, the context in which the work was produced. 1

Goodman (1968), pp. 111–12. 33

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Given Goodman’s distinction, the aesthetic handicap thesis can be interpreted in two ways. The first possibility is that, try as they may, when artists appropriate from another culture, they will produce works that have immediately observable aesthetic flaws. On this first interpretation of the thesis, one does not need to know who produced the work for its flaws to be apparent. That is, the thesis is that, when outsiders appropriate content, they will always employ it ineffectively. We will be able to tell, for example, just by listening to a blues performance by a non-African-American that it has certain flaws. Or we will be able to tell, just by looking at an X-ray style painting by an Anglo-Australian painter, that it is a poor example of its genre. The first interpretation of the aesthetic handicap thesis potentially applies to subject appropriation as well. Applied to this sort of appropriation it states that when outsiders represent other cultures they will do so clumsily, in a way that distorts the culture of insiders. The alternative interpretation of the aesthetic handicap thesis states that the aesthetic flaws of works by cultural appropriators are properties of Goodman’s second sort. On this interpretation of the thesis, the fact that a work employs content from a culture other than the artist’s own, or represents a culture other than the artist’s, is an aesthetic property. Specifically, it is a negative aesthetic property that detracts from a work’s aesthetic value. Perhaps, for example, once a work is known to be by an outsider it will be experienced as (and actually be) insincere or unoriginal.

The Cultural Experience Argument A common sort of argument tries to establish that works by outsiders will have observable aesthetic flaws. This argument starts from the premise that the ability to use a style successfully is linked to participation in a culture.2 On this view, artists cannot successfully employ a style unless they have had experiences available only to members of a culture. In other words, the experience of living as a member of a given culture is a necessary condition of being able to create successful works of the types developed by the culture. We may call this the cultural experience argument for the aesthetic handicap thesis. This sort of argument is made about the appropriation of AfricanAmerican music. A well-known advocate of this view is Amiri Baraka 2

34

Joel Rudinow discusses an argument of this sort. See Rudinow (1994), pp. 132ff.

The Aesthetics of Cultural Appropriation

(the blues musician formerly known as LeRoi Jones). He has maintained that a musician cannot learn to produce the blues (or to produce the blues well) except via “the peculiar social, cultural, economic, and emotional experience of a black man in America. The idea of a white blues singer seems an even more violent contradiction of terms than the idea of a middle-class blues singer. The materials of blues were not available to the white American.”3 (The debate about the appropriation of the blues is often formulated with reference to race or ethnicity. References to race can be replaced by references to culture.) Crucial to this experience was the discrimination to which African-Americans were subject. Baraka writes that, “The blues was conceived by freedmen and ex-slaves . . . as an emotional confirmation of, and reaction to, the way in which most Negroes were still forced to exist in the United States.”4 Many nonAfrican-Americans do not simply lack the experience of being a member of African-American culture and experiencing discrimination. Given their skin pigmentation, they cannot have this experience. (It was AfricanAmerican culture, among others, that I had in mind when, in Chapter 1, I said that culture and ethnicity could be intertwined.) Baraka is not alone in holding this view. Delfeayo Marsalis, an accomplished jazz trombonist and the younger brother of the distinguished musicians Wynton and Branford Marsalis, has written that “one must pay serious dues in order to accurately translate the sorrow and heartache of the blues experience into musical terms. The great blues musician Charlie Parker once said, ‘If you don’t live it, it won’t come out of your horn.’ ”5 The implication here is that ‘living it’ is a matter of living as a member of African-American culture. Marsalis is claiming that the blues experience is exclusively available to members of this culture. The blues is not the only art form to which the cultural experience argument is applied. Fay Nelson, the Director of the Australia Council’s Aboriginal and Torres Strait Islander Arts Board, has applied the argument to visual arts in the styles of Australia’s aboriginal cultures. She has stated that, in order successfully to produce such works, artists “have to live the life of an Aboriginal person.”6 The conclusion of the cultural experience argument is that artists who lack the requisite cultural background are bound to produce works or 3 4 5 6

Jones [Amiri Baraka] (1963), p. 148. Jones [Amiri Baraka] (1963), p. 142. Cited in Rudinow (1994), p. 132. Coleman (2005), p. 29. 35

The Aesthetics of Cultural Appropriation

performances of a poor aesthetic quality. According to Baraka, the result of the appropriation of the blues was commercialized and diluted music. Paul Oliver has called the blues performances of middle-class whites “sterile and derivative.”7 He has gone on to express skepticism about whether the blues can survive as a flourishing musical style when divorced from its original cultural context. Even most contemporary AfricanAmericans do not have the same cultural background as the pioneers of blues music. Comparatively few of them are poor sharecroppers. Since the blues originated in a specific cultural context, the cultural experience argument has an initial plausibility. Many performances of blues by musicians whose cultural background is non-African-American undeniably are aesthetically poor. They do not measure up to the standards established by pioneering African-American blues artists such as Ma Rainey, John Lee Hooker, Muddy Waters, and so on. Despite its initial plausibility, the cultural experience argument faces telling objections. The first point to make is that, even if artists cannot successfully master a style or genre developed in another culture, it does not follow that they are condemned to aesthetic failure when they engage in cultural appropriation. We need to distinguish between two ways in which artists can engage in content appropriation. The first may be called non-innovative content appropriation. We would have an example of such appropriation if an American performer were to attempt to enter into the tradition of Japanese epic ballad recitation by chanting (in Japanese) the Tale of the Heike while accompanying himself on a biwa. Artists engaged in non-innovative content appropriation are not creating a new category of artwork, but adding to a category that already exists. They attempt to succeed by the standards already established within the culture from which they are appropriating. In this case, a non-Japanese performer is trying to master the techniques of an existing Japanese tradition. Alternatively an artist might engage in innovative content appropriation. Artists who engage in this sort of appropriation appropriate a style or a motif from a culture but use it in a way that would not be found in the culture in which it originated. Picasso was engaged in innovative content appropriation (specifically: motif appropriation) when he borrowed ideas from African carvers in such paintings as Les Demoiselles d’Avignon. Although African carving influenced Picasso, he did not produce a work that belongs to any tradition of African carving. Similarly, Ravel borrowed from African-American culture in such jazz-influenced works 7

36

Cited in Rudinow (1994), p. 127.

The Aesthetics of Cultural Appropriation

as the Sonata for Violin and Cello (1922), the Sonata for Violin and Piano (1927), and the two piano concerti (the Piano Concerto for the Left Hand in D Major, composed for Paul Wittgenstein, and the Concerto in G Major) he composed between 1929 and 1931. Although these are not jazz compositions, we find in them innovative content appropriation. A similar point can be made about jazz-influenced compositions by Debussy and Stravinsky and about Steve Reich’s Ewe-drumminginfluenced compositions. Equipped with the distinction between innovative and non-innovative content appropriation we are in a position to see the first problem with the cultural experience argument. At best it shows that artists who engage in non-innovative content appropriation are doomed to aesthetic failure. Perhaps the middle-class white college student who sings the blues, imitating the singers he has heard in recordings, will inevitably produce derivative and uninspired music. Perhaps my imaginary American performer will never be able to recite epic Japanese poetry as well as a Japanese. Even if this is so, the cultural experience argument provides us with no reason to believe that outsiders will not be able to make aesthetically successful innovative re-use of styles and motifs developed by other cultures. I take it that the examples of motif appropriation by Picasso and Ravel are sufficient to establish this point. Even Baraka, who endorses the aesthetic handicap thesis, acknowledges this point. Middle-class whites are, on his view, unable to produce good music in an African-American style. Still, he admits that they are able to appropriate from African-American culture and produce something valuable. Baraka concedes this in the contexts of a discussion of the trumpet playing of Bix Beiderbecke. According to Baraka, Beiderbecke’s playing was “certainly an appropriation of black New Orleans brass style, most notably King Oliver’s.” At the same time, Baraka recognizes that Beiderbecke was a successful musician. He “played ‘white jazz’ . . . music that is the product of attitudes expressive of a peculiar culture.” Still, “the serious white musician” such as Beiderbecke was in a position to make creative re-use of what he had appropriated and he produced good music.8 A similar point can be made about appropriation of the blues. Baraka maintains, reasonably enough, that rock and roll simply is rhythm and blues by another name.9 The claim that all non-African-American rock 8 9

Jones [Amiri Baraka] (1963), pp. 151, 154. Baraka and Baraka (1987), p. 330. 37

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and roll is unsuccessful is very implausible. Certainly some imitators of Fats Domino and Chuck Berry were unsuccessful non-innovative appropriators. The same claim cannot be plausibly made about innovative appropriators of rhythm and blues. The Beatles, the Rolling Stones, Bob Dylan, and others spring to mind as musicians who were successful innovative appropriators of African-American music. While their music was made possible by cultural appropriation from African-American musicians such as Domino and Berry, their music was stylistically distinct. Despite being the product of cultural appropriation, their music was (by the standards of popular music) aesthetically successful. The response just given to the cultural experience argument does not completely undermine the argument. It may still be successful against non-innovative appropriation. If so, this would be worrying since much cultural appropriation is likely to be non-innovative. Picasso, Ravel, and Beiderbecke were great artists and less talented and innovative artists will perform much cultural appropriation. A little reflection is sufficient to show that the cultural experience argument is unable even to show that non-innovative content appropriation will necessarily suffer from observable aesthetic flaws. Very little evidence exists for the claim that mastery of an artistic style is linked to membership in a culture but vast amounts of evidence can be marshaled in support of the opposite claim. Many examples can be given of artists from diverse cultures who are successful practitioners of the same style. (At least, they are apparently successful. Consideration of the second sort of aesthetic property is still pending.) Consider bel canto singing, originally produced in the context of Italian culture. Singers with diverse cultural backgrounds have fully mastered the style: Kathleen Battle (an African-American) and Kiri Te Kanawa (half Maori) no less than Cecelia Bartoli. The greatest composer in the French baroque style was Jean-Baptiste Lully (born Giovanni Battista Lulli in Florence). Arguably the most proficient master of the Italian baroque style was Il caro Sassone, George Frederic Handel. What is true of Italian musical styles is as true of those that originated in the context of African-American culture. Ray Eldridge, the distinguished African-American jazz trumpeter, was an adherent of the cultural experience argument. He once bet Leonard Feather, the music critic, that he could reliably tell the difference between jazz performances by AfricanAmericans and non-African-Americans. If anyone could tell the difference, Eldridge could. Widely regarded as the greatest trumpet soloist of his time, Eldridge’s credentials were impeccable. Put to the test, he failed 38

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miserably. In blind listening situations, he misidentified the cultural origins of the performer more than half of the time. (Feather conducted a series of “blindfold tests” for Down Beat during his long tenure at that magazine.) Let us return to our starting point: the blues. It is possible to name any number of outsiders who are good blues musicians by the standards established by insiders. Marcia Ball, John Hammond, James Harman, Charlie Musslewhite, Stevie Ray Vaughan, and Johnny Winter are all examples of outsiders (relative to African-American culture) who are successful blues musicians by the standards of insiders. Many of them are multiple winners of W. C. Handy Blues Awards. Presumably such a distinguished bluesman as Buddy Guy would notice the flaws in the blues of Eric Clapton, a born and bred Englishman. Yet Guy has said with reference to Clapton that, “all I want to do is hear him play. Race, size, color, nothing matters when a guy’s got it, and Eric’s got it.”10 Guy was perfectly aware that Clapton is an outsider relative to AfricanAmerican culture. So far the examples I have given are taken from music, but examples can be given from any art or genre. Consider paintings in the style of Australia’s aboriginal cultures. A great deal of effort has gone into giving an account of what it is for a work of art to be an authentic aboriginal work.11 People have talked about the ethnic or cultural background of the artist. Others have talked about whether a work was produced with the sanction of an aboriginal culture. They have not talked at all about observable features of paintings. The reason is that there is no reliable way for viewers to tell, just by looking at a painting, whether it is by a member of an aboriginal culture or by an outsider. Several high-profile scandals have resulted from the inability of anyone to determine for certain whether a work is by an insider or an outsider. In 1996, the Telstra National Aboriginal and Torres Strait Islander Award was awarded for Storm in Atnangkere Country II (c. 1996), a dot painting attributed to the aboriginal artist Kathleen Petyarre.12 Subsequently, Petyarre’s estranged common-law husband, Ray Beamish, claimed to have painted this work and other paintings attributed to Petyarre. Beamish is a white Australian, born in Wales. Petyarre denied that Beamish had done anything more than assist her. The Telstra Award 10 11 12

Quoted in Taylor (1995), p. 313. See, for example, Coleman (2001). For an account of the scandal see Wimmer (1998), p. 6. 39

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judges sided with Petyarre and allowed her to keep the prize, but many critics suspect that Beamish’s contribution was much greater than she allowed. Dots produced by Beamish are highly regular and evenly spaced, unlike those of his former spouse. This seems to support his claim to have produced the work in question. This is not an isolated case. Clifford Possum Tjapaltjarri is one of the most prominent Australian aboriginal painters but there is evidence that non-aboriginal assistants have contributed to the production of some of his works. Sometimes non-aboriginal artists have successfully passed off their work as aboriginal products. Elizabeth Durack, an established non-aboriginal Australian painter, sold works under the nom de plume (or, rather, nom de pinceau), Eddie Burrap. She even created an entire fictional identity for Burrap. He was said to be man of the Maban clan, and highly initiated in the clan’s secret knowledge. This is, of course, fraud. For present purposes, the interesting point is that Durack’s deception might not have been discovered had she not herself revealed that the paintings attributed to Burrap were by her. One of the Burrap paintings was nominated for the same award won by the painting by Petyarre (or Beamish). Aboriginal-style paintings produced by artists who are not part of aboriginal cultures may have aesthetic flaws. If so, however, they are apparently not flaws that can be detected by merely viewing the works. The fact that there is no hard and fast link between culture and artistic success should not surprise us. The cultural experience argument only alleged that experience of living in a culture was a necessary condition of being able to create successful works in certain categories. It never said that such experience was a sufficient condition of being able to do so. Nor should it have. After all, many people belong to a given culture and yet are unable to produce successful works of art in the categories typical of their culture. (I, for example, am unable to produce a successful work of art in any of the genres characteristic of my culture.) Given that membership in a culture is not a sufficient condition of being able to produce good works of a certain sort, we might well ask what else is necessary. It is probably impossible to specify sufficient conditions for the successful production of works in any genre but it is fairly easy to identify a few necessary conditions. Aspiring artists must undergo a process of training. (Sometimes, an artist can be self-trained.) Artists must study successful works of the sort that they aspire to produce. They must become familiar with techniques and materials. Often they need to learn the significance of certain symbols, conventions, and so on. So, for example, someone studying composition needs to learn the significance of the 40

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diabolus in musica. Perhaps, most importantly, artists must repeatedly practice their craft. These are the really important preconditions of being a successful artist in any style. Notice that no mention is made of the cultural background of the aspiring artist. The required training can be undertaken by anyone. Being able to work in a given style is like learning a language and there is no reason why outsiders cannot learn this language every bit as well as insiders. Or, to use another analogy, learning to create works in a given style is like learning a martial art. A European can master tae kwon do every bit as successfully as a Korean, and a Canadian can master tai chi as well as a Chinese.

Aesthetic Properties and Cultural Context In the previous section I assumed that if outsiders who engage in cultural appropriation labor under an aesthetic handicap, they will produce works with observable aesthetic flaws. I have argued that when outsiders engage in non-innovative appropriation they are successful when experience cannot reliably distinguish their works from those produced by good insider artists. Even if we cannot immediately determine which works are by outsiders, we cannot rule out the possibility that their works inevitably have aesthetic flaws. Perhaps they have flaws because of the second sort of aesthetic property Goodman identified. Perhaps facts about the origin of works by outsiders will enable us to see or interpret works by outsiders in new ways. Perhaps when we reinterpret works by outsiders, flaws will become apparent. A long and distinguished tradition in aesthetics would have us reject Goodman’s distinction. According to this empiricist tradition, nothing is relevant to the aesthetic value of a work of art besides its observable properties. Facts about the intentions, beliefs, provenance, or (most importantly given present concerns) the cultural background of an artist have no relevance to the aesthetic properties of a work of art. Anyone who subscribes to this tradition will believe that much of what follows in this section is not only unnecessary but misguided. I am inclined, however, to think that Goodman’s distinction cannot be disregarded. The way in which information about the origin of an artwork can affect its aesthetic properties can be illustrated by a well-known literary thought experiment. Jorge Luis Borges famously compared the Don Quixote (1605) of Cervantes and the (imaginary) Don Quixote of Pierre Menard. In Part I, Chapter 9, of Cervantes’ Quixote we find the following passage: 41

The Aesthetics of Cultural Appropriation

Truth, whose mother is history, who is the rival of time, depositor of deeds, witness of the past, example and lesson to the present, and warning to the future . . .

Menard in the early twentieth century, Borges imagines, writes instead: Truth, whose mother is history, who is the rival of time, depositor of deeds, witness of the past, example and lesson to the present, and warning to the future . . .

Written in the seventeenth century, Cervantes’ “enumeration is a mere rhetorical eulogy of history.” For Menard, the contemporary of William James, the same passage is a statement of pragmatism: “Historical truth, for him, is not what took place; it is what we think took place.”13 This illustrates how information about the origin of a literary work can influence how it is interpreted and what properties it has. The same point can be made in less fanciful terms. In the early eighteenth century, King George I described the work of the architect Sir Christopher Wren as “amusing, awful and artificial.” He meant that it was amazing, awe-inspiring, and artistic. Obviously, the King’s words do not have the same meaning today. The meanings of words depend on the contexts in which they are originally used. The meaning of words in a work of literature contributes to its aesthetic properties. Consequently, the aesthetic properties of a literary work depend on the work’s original context. A similar point can be made about the properties of musical and visual artworks. Certain harmonies will be dissonant if produced in the eighteenth century. The same harmonies will not be dissonant in a twentieth-century composition. An even more general argument shows that the aesthetic properties of an artwork can depend on facts about its production. I have in mind the argument in Kendall Walton’s classic paper, “Categories of Art.”14 Walton argued that we can only determine what aesthetic properties an artwork has once we have determined the category to which it belongs. Indeed, a work only has aesthetic properties in the context of a category. One cannot, for example, say that a painting is gaudy tout court. First we must determine the category to which it belongs. Imagine that we are presented with a brightly colored landscape. If it belongs to the category 13 14

42

Borges (1981), p. 102. Walton (1970).

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of Wu School landscape painting (exemplified by the works of Shen Zhou), it may very well be gaudy. If the painting belongs to the category of post-impressionist landscapes (say it is in the style of Van Gogh or Matisse), then probably it is not gaudy. In determining the category to which a work of art belongs we take into account a wide variety of factors. Among these factors will be knowledge about artists and their historical contexts. The culture of an artist is a large part of the historical context. A few examples will illustrate how the cultural background of an artist can have an impact on the aesthetic properties of a work. Imagine that we have a certain number of artworks which are thought to have been produced by insiders. One is apparently a typical Mississippi Delta blues. Another is a novel about the ante bellum American south, reputedly written by a freed slave. Imagine now that it turns out that the blues piece was not performed by an African-American insider, but is rather by a university student from Beijing. Or imagine that it turns out that a slave owner wrote the novel in question. (The example is not as fanciful as it may seem. In the nineteenth century white authors from the northern United States wrote several books which were purported to be by escaped slaves.) The cultural milieu of an artist is an important part of a work’s original context. So it could well be that critics are justified in revising their assessment of the works in question. They may have been wrong when they judged the novel to be a sensitive and poignant indictment of slavery. Perhaps it is a sly parody of African-American manners. Similarly, the blues performance will not have been a heartfelt expression of the plight of poor African-American sharecroppers. The judgment that it was is mistaken, even though no observable features of the performance would justify the conclusion that the judgment is mistaken. The arguments of this section show only that the aesthetic properties of an artwork depend on the context of production. The arguments do not show that outsiders must produce aesthetically unsuccessful works when they engage in content appropriation. It may very well turn out that, particularly when viewed as belonging to a category of works produced by outsiders, the results of cultural appropriation may be very successful works of art. That is, perhaps the outsiders are engaged in innovative content appropriation. We cannot even conclude that artists cannot produce artworks that are valuable when considered as belonging to a category of artworks (say, blues performances or aboriginal X-ray style paintings) found in another culture. We still do not have an argument for the conclusion that outsiders’ works inevitably have (qua works by outsiders) aesthetic flaws. 43

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Authenticity and Appropriation Even if the aesthetic properties of an artwork depend on the cultural context in which it was produced, we still do not have an argument that shows that works produced by outsiders are necessarily subject to aesthetic flaws. No developed philosophical literature directly supports the aesthetic handicap thesis. There is, however, a literature that can be adapted to argue for the thesis. In introducing his distinction between the two types of aesthetic properties, Goodman was concerned about forgeries. Goodman, and many writers who have followed his lead, have held that forgeries and originals have different aesthetic properties. This could be the case even when a forgery and an original cannot be distinguished simply by experience of the works. A number of writers have suggested that forgeries and originals originate in different contexts and that this has an impact on the aesthetic properties of the works. In the case of forgeries, the impact is thought to be negative. One might similarly maintain that the cultural backgrounds of artists affect the aesthetic properties of artworks and affect them negatively. Several philosophers have advanced arguments that open up this possibility. Colin Radford put the question in the following terms. He asked whether a critic could “be justified in feeling differently about a painting after he has learned . . . that it was not what he thought.”15 He has in mind the discovery that a painting is not, say, by Vermeer but by Van Meegeren. (Famously, Han van Meegeren produced several paintings that he attributed to the great seventeenth-century Dutch master.) The same issue can arise in the context of cultural appropriation. Radford is only one example of a philosopher who has presented variations on what we may call the authenticity argument. In Radford’s version of the argument, we are asked to imagine that the discovery that some painting is a forgery is not accompanied by any discovery of observable aesthetic flaws. Imagine, for example, that some work is now known to be by Van Meegeren, and not by Vermeer, but that everyone still agrees that the painting is very fine. Unlike other Van Meegerens, it displays a profound knowledge of anatomy, the modeling is excellent, it contains no flaws in the perspective, the composition is balanced, and so on. The best critics agree that it is emotionally charged. There may still be grounds for revising the assessment of the painting given when it was thought to be by Vermeer. For example, when thought 15

44

Radford (1978), p. 67.

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to be by Vermeer the work could be judged to be original. When known to be by Van Meegeren, Radford suggests, the painting now looks derivative. It is not an expression of an original perspective and, in this sense, the work is not authentic. Radford is not the only philosopher to argue along these lines. W. E. Kennick presents a related argument and explicitly extends it to cover the case of cultural appropriation. He writes that, “I cannot, for example, even if I had the appropriate technical skills, paint a picture in the style of the thirteenth-century Chinese master Mu Ch’i (or Fa Ch’ang). The best I can do is imitate (ape, mimic) his style.”16 Kennick was primarily concerned about forgery. His point is, however, one that can be applied to acts of cultural appropriation. Kennick went on to observe that, “The Caravaggisti, because they were in the suitable historical and geographical position to do so, adapted, in parte, the style of Caravaggio.”17 He might have added that the Caravaggisti were in the right cultural position to paint in the style of Caravaggio. (This claim is more plausibly made of some of his followers than it is of others. One might reasonably claim that one of his Italian epigoni, such as Bartolomeo Manfredi, shared the same culture. The Utrecht Caravaggisti do not so obviously share the same culture as the great Italian master.) Since cultures have changed, no one today, Kennick leads us to believe, can authentically paint in the style of Mu Chi or Caravaggio. Anyone who tried would produce an inauthentic imitation instead of a bold, original work. Similarly, one could hold, someone who is not from an Australian aboriginal culture, but who paints in an aboriginal style, will produce something derivative and inauthentic. Martin A. Bestman reaches a similar conclusion. He states that no one today can authentically paint in the style of – he varies the example – Masaccio. His reason for stating this is that any present-day artist “stands in a different relationship to his craft than those painters of a half millennium ago whose style he captures. He, after all, has to ‘act to forget’ the technical progress of his craft. Further, the content of his painting – its symbols, allusion, and interests – speak to a social world long gone.”18 Anyone who attempts to appropriate the style of painters from long ago is condemned, on this view, to produce works that are inauthentic. 16 17 18

Kennick (1985), p. 7. Kennick (1985), p. 7. Bestman (1984), p. 116. 45

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Bestman is concerned in this passage with artists who employ styles from the past. He goes on to suggest that a similar inauthenticity will exist when an artist appropriates something from foreign contemporary cultures. He does not develop this point, but one can easily imagine how the argument would go. Suppose I were to sculpt a house pole in the style of the Songish or Salish cultures of Vancouver Island and suppose that I am a technically gifted sculptor. I could include the Thunderbird (eagle) and other totems without having the smallest idea about their mythological significance. As used by an insider, an image may have rich symbolic significance. It may be the insigne of a clan or of a deity. As used by an outsider, the same image is simply a strong graphic design. Since the outsider’s work lacks the symbolic or cultural significance of works by insiders, there is a sense in which it is inauthentic. Moreover, Bestman would say that outsiders are also not employing the full range of skills they have as (let us suppose) academy-trained sculptors. This suggests that their work would be inauthentic in another way: they are not fully expressing themselves.

Authentic Appropriation Each of the versions of the authenticity argument just presented leads to the conclusion that outsiders who appropriate content will produce works that are inauthentic. Before these arguments can be assessed we need to say a little more about the concept of authenticity. We need to be clearer about what authenticity is and why it is an aesthetic virtue. I will consider four sorts of authenticity. Not all of these sorts of authenticity are aesthetic virtues. The first point to make is that we are not here concerned with authenticity in the sense of being produced by insiders. In this sense, the authenticity of an artwork depends on its provenance. We may say that a work is authentic when it is in a style and genre of a given culture and insiders (relative to that culture) have produced it. Otherwise, it is inauthentic. Works that are authentic in this sense I will call provenance authentic. Many people are concerned with provenance authenticity. Insider artists are justifiably upset when works by outsiders are represented as works by insiders. Apart from anything else, such fraud can harm the economic interests of insiders. Outsiders are also harmed. Collectors of, for example, Australian aboriginal art and the art of North American 46

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First Nations, often want to know that an artwork has been produced by an insider. Misrepresentation of the origins of arts and crafts is common. According to one estimate, aboriginal Australians paint only about half of the didgeridoos sold.19 Many fewer are cut by aboriginal craftsmen. Nevertheless, almost all of the instruments are sold as ‘authentic aboriginal didgeridoos’. The production of provenance inauthentic works is an indefensible attack on the interests of insiders. In a subsequent chapter I will consider the harm that results from misrepresentation of a work’s provenance. Here provenance authenticity is not at stake. For a start, we are concerned with works that are, by hypothesis, known to be by outsiders. More importantly, provenance authenticity is not, in itself, an aesthetic merit. A work could be provenance authentic but have a low aesthetic value. After all, every culture is home to poor artists. More importantly still, the suggestion that provenance inauthenticity is an aesthetic demerit begs the question. At issue is the question of whether works by outsiders necessarily have an aesthetic flaw qua works by outsiders. One cannot argue for the conclusion that they do by reiterating that such works are produced by outsiders. We can identify a second sort of authenticity that plausibly is an aesthetic property. Authenticity, in this second sense of the word, is the property of being the product of an artist’s individual genius. An inauthentic work is derivative or even imitative. Kennick and Radford seem to be concerned with this sort of authenticity. It is also akin to a sort of authenticity discussed by Peter Kivy.20 I will borrow Kivy’s term and say that works that are an expression of an artist’s individual genius are characterized by personal authenticity. Those that are not are characterized by personal inauthenticity. Personal authenticity is an aesthetic merit. All things being equal, a work of art that is an original expression of an artist’s genius is more valuable than a derivative one. The original artwork opens up new perspectives. It excites the imagination in new ways. Now we need to ask the question of whether works by outsiders are necessarily characterized by personal inauthenticity. I do not see why this should be so. In order to see that appropriation can result in authentic works, we can begin by recalling the distinction between innovative and non-innovative content appropriation. There may be a reason to think that non-innovative content appropriation will not be personally 19 20

Estimate found at www.didjshop.com/authenticity.html. Kivy (1995). 47

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authentic. It is in the nature of such works to be heavily indebted to other works. We have no similar reason to think that innovative content appropriation will be personally inauthentic. On the contrary, innovative content appropriation seems likely to result in personally authentic works. Still, perhaps the artist who engages in non-innovative content appropriation necessarily produces personally inauthentic works. Certainly, anyone who engages in non-innovative content appropriation produces a work that is, to some extent, derivative. That said, every work of art, or at least every work of art that audiences can appreciate, is derivative to some extent. Unless a work fits into some category of artwork, audiences have no idea about how to appreciate it.21 It does not follow from this that a work is not personally authentic. A debt to an existing tradition does not remove the possibility of personal authenticity. Any tradition provides scope for artists to innovate. Artworks can owe a great deal to previously existing works and still be personally authentic. Certainly artists who borrowed liberally from others have produced some of the greatest art of all time. Johann Sebastian Bach was a conservative composer whose style closely approximates the style of his immediate predecessors. Or consider the music of George Frederic Handel. As long ago as the eighteenth century, Uvedale Price remarked that, “If ever there was a truly great and original genius in any art, Handel was that genius in music; and yet, what may seem no slight paradox, there never was a greater plagiary. He seized [that is, appropriated], without scruple or concealment, whatever suited his purpose.”22 And yet, in borrowing from others, Handel created great masterpieces. William Boyce remarked of Handel’s borrowings that, “He takes other men’s pebbles and polishes them into diamonds.” Handel was quite unashamed of his appropriation of material from other composers. When asked about a theme he had appropriated from Bononcini, Handel is said to have replied, “It’s much too good for him; he did not know what to do with it.” Artists such as Bach and Handel could, though they were greatly indebted to their predecessors, produce personally authentic compositions. Though they borrowed from others they also contributed a spark of individual genius. Literary examples can also be used to show that innovation and aesthetic triumph are not necessarily correlated. As Stein Haugom Olsen notes, the great innovators in the history of the English novel are Dafoe, 21 22

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Carroll (2003), pp. 211ff. Price (1842), p. 573.

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Fielding, and Richardson. Few would suggest, however, that they were as successful in the creation of art as Austen, Dickens, and George Eliot, who inherited and worked within a literary tradition.23 A work can be highly dependent on an existing tradition and have a high aesthetic value. The examples of borrowing I have just given are not examples of cultural appropriation. (Though perhaps, in borrowing from Bononcini, Handel was engaged in cultural appropriation. It is not obvious that Handel, a naturalized Englishman of Saxon upbringing, shared the same culture as Bononcini, though as I noted in the previous chapter, there is a sense in which they do. They both participate in European culture.) One might grant that works that draw on other works can be personally authentic, but still think that outsiders are more likely to produce derivative work than insiders. I see no reason to believe that this is so. All artists working within a tradition depend on earlier artists and, in this sense, their work is derivative. This is as true of insiders as it is of outsiders. Indeed, in many artistic traditions, innovation is not valued. Consider, for example, the sculptures for the housing of spirits produced by the Kalabari of southern Nigeria. Close resemblance to previously existing sculptures is stated as a desideratum of new ones.24 Consequently, if anything, one might expect that the outsider, who may have the benefit of exposure to a wider range of artistic styles, may have an advantage over the insider. Broader artistic experience will make it easier to produce works characterized by personal authenticity. Turn now to a consideration of a third sort of authenticity, one suggested by Bestman’s remarks. (I will ignore Bestman’s suggestion that artists need to ignore technical progress when they appropriate a style from another culture. The mastery of any style requires the mastery of a new sort of technique. Adapting Herbert Butterfield’s famous phrase, we may reject the Whig interpretation of art history.) A work of art can be authentic in the sense that it is something to which the producing artist is fully committed. To say that artists are committed to their work is to say that they understand the full significance of all of the elements of their work and that they embrace their work’s perspectives on the world. Artists could be ignorant of the significance of symbols and other elements of their works. Alternatively, they could be aware of the significance of the elements of their works, but not embrace them. For example, I might not believe a myth I retell. In either case, the work would 23 24

Olsen (2003), pp. 199f. Layton (1991), pp. 7–8. 49

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be inauthentic. This sort of inauthenticity is akin to the authenticity discussed by existentialists such as Heidegger and Sartre.25 Existentialists expect individuals to be fully committed to everything that they do. Inspired by the existentialists, I will identify another sort of authenticity, existential authenticity. Before proceeding any further, we need to ask whether existential authenticity is an aesthetic merit. One can make a case on either side of this question. As we have already seen, a well-established aesthetic school instructs us to pay attention only to the perceptible qualities of artworks. According to this school, artists’ grasp of the significance of the elements of their artworks is irrelevant to the interpretation and appreciation of their works. If this sort of approach to interpretation and appreciation is right, we still need to be concerned about existential authenticity. It may be the case that artists who are unfamiliar with the significance of symbols and imagery that they employ will not use them skillfully. If so, this will be apparent from an examination of the work. Many people believe that artists’ commitment to their work is more important than the previous paragraph suggests. A work of art (at least very often) presents a perspective on the world. It matters to audiences that artists are committed to the perspectives presented in their works. Consider for example two artists, one a Christian and the other an atheist, who both paint a Crucifixion. Imagine also that the paintings are visually indistinguishable. Audiences, particularly audiences of Christians, might very well care about whether an artist is committed to the Christian perspective on Christ’s Passion. In all probability, if a church is going to commission an altarpiece, it will commission the painting from the artist who is committed to the perspective presented in the painting. They may do so on the grounds that the Christian’s altarpiece is existentially authentic while the atheist’s painting is not. This may indicate that existential authenticity is an aesthetic virtue. An example that is more explicitly a case of cultural appropriation seems to lead to the same conclusion. A musician who is a member of mainstream American culture could sing the blues without a full awareness of the significance of this style and its elements. This musician may use the words ‘mojo’ and ‘hep’ without any idea of their meanings within African-American culture. More generally, the musician might perform blues numbers without any idea of the cultural significance that the blues has for African-American culture. Such a singer would produce 25

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For a discussion of this sense of authenticity, see Baugh (1988).

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existentially inauthentic performances. An audience from AfricanAmerican culture may well perceive this as an aesthetic flaw. Similarly, an Anglo-Australian painter from the suburbs of Melbourne may appropriate imagery from an aboriginal culture without understanding its cultural significance. Presumably these paintings are not existentially authentic. More importantly, it may seem that this existential inauthenticity is an aesthetic flaw. This strikes me as a plausible position, but a contrary position also seems plausible. Consider, for example, performances of Bach’s church cantatas. These cantatas had a very specific cultural significance. They were written for Lutheran church services and Bach was deeply committed to the idea that they presented a Christian perspective. (He marked each of them SDG – Sola Dei Gloria.) Presumably only a Lutheran or, at any rate, a Christian can give an existentially authentic performance of these works. If existential authenticity is an aesthetic virtue, it follows that a performance not by a Christian has an aesthetic flaw. Nevertheless it seems credible that a performance by Chinese atheists or Israeli Jews could be an aesthetic triumph. The same point can be made about the works of outsiders who engage in cultural appropriation. An outsider may not be able to produce an existentially authentic work in the style of insiders, but perhaps it could be (like some atheists’ performance of, say, Bach’s “Ich habe genug”) an aesthetic success. The claim that (at least some) artworks and performances by outsiders must be existentially inauthentic (and deeply aesthetically flawed) and the claim that they can be aesthetically successful both seem plausible. Perhaps the contradiction is only apparent. One could say that the aesthetic value of an artwork or a performance is relative to an audience. Perhaps relative to secular music lovers the atheists’ performance of “Ich habe genug” is an aesthetic triumph. Perhaps, on the other hand, relative to the devout Lutheran audience the performance is an aesthetic failure because it is existentially inauthentic. One might posit a similar relativity in the context of cultural appropriation. The African-American audience might find a blues performance existentially inauthentic, and so badly aesthetically flawed. The audience of outsiders might be unconcerned by the same existential inauthenticity. Relative to them, the same blues performance (or aboriginal style painting or other product of content appropriation) has high aesthetic value. It would be better to resolve this issue without recourse to relativism. I am skeptical about the claim that existential authenticity is an aesthetic virtue. (At a certain point I want to say that the audiences of Christians 51

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and African-Americans that I have just imagined are unreasonably prejudiced against certain works.) In any case, even if we grant that existential authenticity is an aesthetic virtue, it does not follow that artists who engage in cultural appropriation cannot produce existentially authentic works and performances. Certainly, some outsiders will produce existentially inauthentic works. The middle-class college student who parrots blues lyrics without understanding their significance is just such an outsider but not all outsiders produce such inauthentic works. One way for outsiders to produce existentially authentic works is to engage in innovative content appropriation. Consider again Picasso’s appropriation of motifs from West African carvers. Very likely Picasso was unaware of the significance these motifs had within their original cultural context. It does not follow from this that Les Demoiselles d’Avignon is not existentially authentic. Good artists can endow the elements of their artworks with a fresh significance. This is precisely what Picasso and other artists have done. These artists will not produce existentially authentic instances of works in the categories that insiders possess. But they will produce instances of works in new categories and there is no reason why these cannot be existentially authentic and works of high aesthetic value. The insiders may judge that the work has a low aesthetic value because artists cannot produce an existentially authentic example of a work in the style of insiders. This judgment would be mistaken since it miscategorizes the work. Still, even if this argument is accepted, it may seem that noninnovative content appropriation will be existentially inauthentic. To a large extent this conclusion can be avoided. An atheist who sings a Bach cantata can be fully committed to the work as an expression of themes of repentance, forgiveness, or longing, even if these themes are removed from their original theological contexts. Similarly, artists can use content appropriated from another culture to express perspectives to which they are fully committed. In both of these cases, we can say that artists have produced works or performances characterized by existential authenticity. Insiders may still regard the works as existentially inauthentic since the outsider does not accept certain beliefs current in their culture. The response to this should be that this is irrelevant. The artist is fully committed to his work and this is sufficient to make it existentially authentic. Still, it must be admitted that outsiders cannot produce existentially authentic works or performances if they simply ape the artistic practices of members of another culture. Sometimes artists will ape others and, to the extent that existential inauthenticity is an aesthetic flaw, these artists will produce unsuccessful works of art. 52

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One final sort of authenticity remains to be identified and discussed. It is not an authenticity identified by any of the writers cited in the previous section. It is an authenticity that depends on the stylistic features of an artwork or performance. I will call this style authenticity. This sort of authenticity is definitely an aesthetic virtue. Talk of style authenticity may seem to take us back to a consideration of Goodman’s first sort of aesthetic property. One might think that one can tell the style of an artwork without knowing anything about the circumstances of its production. In fact, one cannot tell the style of a work without knowing something about its context. This point can be illustrated by adapting one of Arthur Danto’s famous thought experiments.26 Imagine three visually indistinguishable canvasses, each a simple red rectangle. The first is Kierkegaard’s Mood, a psychological portrait, somewhat in the style of Barnett Newman. The next is Red Table Cloth, a still life in the style of the fauvists. The final painting, executed in a minimalist style, is Red Square No. 2. One can only determine the style of each painting if one knows something about the circumstances of the work’s production. In particular, one needs to know the artistic tradition in which the painters are working. This can only be determined by reference to the training the painters have undergone. Style authenticity has come to prominence through the activities of the early music movement. The origins of the early music movement can be traced back at least as far as the 1890s but it did not begin to flourish until the 1970s and 1980s. Prior to the advent of the early music movement, it was common to perform all classical music using the same instruments and in much the same style. So, for example, a Bach harpsichord concerto would be played on a modern piano accompanied by modern violins, played with Tourte bows. A single set of performance practices was applied to all compositions, regardless of the year of their origin. It was common for singers and instrumentalists to use almost continuous vibrato while performing works by Bach and Handel. Regardless of what they were playing, musicians would strive for long musical lines. The early music movement has advocated the use of instruments and performance practices that were in use at the time of a work’s composition. So a Bach harpsichord concerto will now be played on a harpsichord such as Bach knew and baroque violins (which differ considerably from their modern counterparts) played with baroque bows. The players will eschew the use of continuous vibrato but introduce 26

Danto (1981), pp. 1–2. 53

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other ornaments. The early music movement advocates what are often called historically informed or authentic performances. Using the terminology I have introduced, we would say that the movement has advocated style authenticity. Style authenticity is a virtue of performances of early music. When a composition in the baroque or classical style is performed in the romantic style, the results can be disappointing. The performances will lack stylistic unity. The expressive content of a piece can be obscured. These points are not restricted to performances of early music. One can think of comically bad performances of rock music by symphony orchestras performing pop concerts. A mixing of styles is not a universal recipe for aesthetic disaster. Sometimes a pastiche of styles can be aesthetically successful, but all things being equal, a failure to match style of composition and style of performance is an aesthetic flaw. Reference to the early music movement in this context is instructive when one comes to consider the aesthetic properties of works that involve content appropriation. There is a parallel between old-fashioned (that is, not historically informed or style authentic) music making and aesthetically unsuccessful cultural appropriation. The violinist who plays Bach with continuous vibrato is like a non-African-American who introduces various musical solecisms into a performance of the blues. The insensitive outsider may very well produce a style inauthentic performance. Conversely, the possibility that performers of early music can produce style authentic performances is parallel to the possibility that outsiders will be able to produce style authentic instances of works characteristic of another culture. Performers who aim for style authentic performances of early music are like outsiders who are engaged in non-innovative content appropriation. The ability of musicians to offer a style authentic performance of a piece of music does not depend on the culture of the performers. Pretty clearly, most contemporary performers of early music do not have a culture in common with the baroque composers whose works they perform. It is unlikely but possible that some contemporary musicians share the culture of, say, Bach. These same performers are likely to perform works by Corelli, Handel, Purcell, Rameau, and Vivaldi, composers from a variety of cultural backgrounds. So most contemporary musicians end up performing works by composers whose culture they do not share. Yet this does not rule out the possibility of contemporary musicians giving style authentic performances of baroque music by a wide range of composers. Consider, as well, that contemporary musicians from a 54

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wide range of contemporary cultures (European, American, Japanese, and others) are able to give style authentic performances of the same musical composition. The ability to give a style authentic performance of some work does not depend on the culture of the performer. As long as the musicians are successfully adapting their practices to the demands of an established historical style, their performances count as style authentic. In order to give a style authentic performance of, say, a Handel opera, musicians must learn the performance practices of Handel’s time. They learn about the significance of certain sorts of rhetorical devices and musical conventions. They must acquire and master the instruments used in Handel’s day. And they must practice, practice, and practice some more. They do not have to acquire Handel’s culture, which may be hard to characterize given his personal history. A similar point can be made about artists who engage in non-innovative content appropriation. The non-African-American musician can aspire to producing a style authentic performance of the blues or jazz. The contemporary European painter can aspire to produce style authentic instances of Wu School landscapes. These outsiders must simply master certain artistic practices. In mastering these practices, the outsiders may acquire something of the culture of insiders. But it is the mastery of the artistic practices, not the acquisition of a culture, that makes style authenticity possible. I conclude that in many senses of the word ‘authentic’, outsiders can produce authentic works in styles appropriated from other cultures. Even if we accept, as I do, that the aesthetic properties of artworks depend on the cultural context in which they were produced, outsiders who engage in cultural appropriation do not labor under an aesthetic handicap that condemns them to produce seriously flawed works of art.

Cultural Experience and Subject Appropriation So far in this chapter I have been concerned with content appropriation but subject appropriation has also been held to be necessarily subject to certain aesthetic flaws. One sometimes hears the claim that outsiders are bound to misrepresent other cultures. If so, ethical questions will immediately arise. Misrepresentations produced by outsiders could be harmful or otherwise morally problematic. This section is, however, just concerned with the aesthetic issue. My view is that artworks can provide insight and knowledge into a variety of matters, including ethical 55

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questions.27 I regard the property of contributing to knowledge as an aesthetic virtue. Conversely works that distort and misrepresent suffer from an aesthetic flaw. If artists, when they represent cultures other than their own, will inevitably produce works that misrepresent, then they are condemned to producing works with aesthetic flaws. This said, we can see that a version of the cultural experience argument can be directed against subject appropriation. Once again the argument begins with the premise that outsiders have not lived as insiders and cannot have all of the knowledge insiders have. When outsiders take other cultures as their subjects, the argument continues, they do so with a less complete knowledge of these cultures than insiders possess. If outsiders’ representations are based on imperfect knowledge of a culture, the representations are bound to be, at best, flawed because incomplete. At worst, they will be misleading distortions. Janisse Browning is an example of someone who has argued that outsiders necessarily have an understanding of a culture less perfect than that possessed by insiders. She has written that, “We persons of color [Browning is a woman of mixed Native American and African ancestry] have hidden knowledge – a wisdom of experience we embody – that can’t be accessed by white people because they have not been forced to continually combat white oppression like we have.”28 Browning concludes that white artists who engage in subject appropriation will inevitably produce work that distorts minority cultures. Thomas Hurka, a prominent philosopher, has made a similar claim. He maintains that, “if a white treats a Native subject, he or she is likely to get it wrong and, worse, to be taken by whites as getting it right.”29 His argument for this conclusion is that there is no significant body of native writing from which whites can learn and against which their writings can be judged. (Both Browning and Hurka talk of ethnic groups, not cultures, but their positions could be recast in terms of cultures.) The fact that misrepresentation has occurred and continues to occur in the treatment of minority cultures is undeniable. One need only think of old Hollywood Westerns which (mis)represent Native Americans as duplicitous and cruel. Misrepresentation of a culture by outsiders can be more subtle than this example suggests. When outsiders are not intimately acquainted with a culture, they can produce artworks that can 27 28 29

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I explore this issue in my book, Young (2001). Browning (1991), p. 33. Hurka (1994), p. 184.

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perpetuate stereotypes that prevent audiences from seeing members of a culture as the individuals that they are. Janice Acoose takes both W. P. Kinsella and Margaret Laurence to task. Linda Star, in Kinsella’s eponymous story from the collection Dance Me Outside (1977), and Piquette Tonnerre, in Laurence’s “The Loons” from A Bird in the House (1978), are intended as sympathetic portrayals of native women, but according to Acoose they are stereotypes. The predicaments of these characters are typical, their reactions are typical, the ways that they speak, dress, and do their hair are typical. As a result, these stories end up hiding the diversity of native women’s lives.30 Or consider adulatory depictions of native cultures in movies such as Arthur Penn’s Little Big Man (1970) and Kevin Costner’s Dances with Wolves (1990). These films provided a corrective to the picture of Native North Americans in earlier big-screen productions, but they nevertheless perpetuated the stereotype of members of indigenous cultures as noble savages. Indigenous cultures are not the only ones misrepresented in cinema. Stanley Cavell notes that many movies stereotype African-Americans. He writes that, “Until recently, types of black human beings were not created in film; black people were stereotypes – mammies, shiftless servants, loyal retainers, entertainers. We were not given, and were not in a position to be given, individualities that projected particular ways of inhabiting a social role; we recognized only the role.”31 Cavell’s claim is about the depiction of a race, but it could equally be made about the representation in cinema of African-American culture. Any movie that stereotypes individuals with an African-American cultural background is aesthetically (and morally) flawed. While it is easy to find artworks by outsiders which misrepresent insiders and their cultures, it is hard to make the case that all such artworks must misrepresent. Examples of non-distorting instances of subject appropriation are easy to find. Tony Hillerman’s Joe Chee novels come readily to mind. They have been recognized by the Navajo as accurately representing their culture. In 1987 Hillerman was awarded the Special Friend of the Dineh (Navajo) award. The citation accompanying this award thanked Hillerman for “authentically portraying the strength and dignity of traditional Navajo culture.”32 The Navajo and other First 30

Acoose (1995), pp. 72ff. Cavell (1979), p. 33. 32 “Tony Hillerman.” Canku Ota: An Online Newsletter Celebrating Native America, issue 75, November 30, 2002. http://turtletrack.org/Issues02/Co11302002/CO_11302002_ Hillerman.htm. 31

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Nations use Hillerman’s books in their schools. Clint Eastwood’s movie Letters from Iwo Jima (2006) has drawn favorable responses from Japanese reviewers. Onda Taeko, writing on Yomiuri Online, wrote that, “Today the person who had the power to tell us the Japanese experience during the war was Clint Eastwood, an American.” Edward Said famously argued that members of one culture are apt to create stereotypes about other cultures, but he also maintained that it is possible for members of one culture to understand another. He explicitly denied that, “only women can understand feminine experience, only Jews can understand Jewish suffering, only formerly colonial subjects can understand colonial experience.”33 Said justifies his position by denying essentialism about cultures. We must “acknowledge the massively knotted and complex histories of special but nevertheless overlapping and interconnected experiences – of women, of Westerners, of Blacks, of national states and cultures – there is no particular intellectual reason for granting each and all of them an ideal and essentially separate status.”34 The account of cultures given in Chapter 1 of this essay rejects, as does Said, the sort of essentialism about cultures on which the cultural experience argument depends. Said recognizes that artists from a given culture can have presuppositions and prejudices when they represent other cultures. He forcefully argues that Conrad (in Nostromo, 1904) and Kipling (in Kim) failed to question imperialism. Kipling never doubted for a moment the necessity and rightness of British rule in India and this shapes his perception of the country. Conrad recognized that imperialism had terrible consequences, but never conceives of an alternative. At the same time, Said recognizes that both Conrad and Kipling are great artists who, while writing about cultures other than their own, produced great masterpieces, ones full of insights into the cultures of others. Perhaps these authors would have been even greater had they not suffered from certain forms of cultural myopia, but they still produced masterpieces. The cultural experience argument starts from the premise that first person experience of something is necessary if one is to write effectively about it (or otherwise successfully represent it in art). If this premise were accepted, a whole range of implausible conclusions would follow. If first person experience is necessary in order to write effectively about some matter, it follows that it is impossible for men to write effectively 33 34

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Said (1993), p. 31. Said (1993), p. 32.

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about women and women about men. This consequence of the cultural experience argument clearly flies in the face of the evidence provided by thousands of years of literature. Clearly men (from Sophocles on) have entered imaginatively into the experience of women. Women have similarly imaginatively entered into the experience of men. In doing so these artists have not always distorted the experience of the opposite sex. On the contrary, both male and female authors have succeeded in producing psychologically insightful masterpieces. The cultural experience argument leads to the conclusion that all representations of insiders by outsiders will be misrepresentations. From a moral point of view, there may be an asymmetry between the representation of a minority culture by a member of a dominant culture and the representation of a dominant culture by a member of a minority culture. The representation of a minority culture by an outsider might be harmful in a way that the representation of a majority culture is not. (I will return to this point in Chapter 4.) When we are concerned with the aesthetic issue, the same asymmetry does not recur. If the cultural experience argument is correct, members of minority cultures will be just as prone to misrepresent majorities as majority artists are likely to misrepresent minority cultures. Consequently, an advocate of the cultural experience argument is forced to defend the view that such prominent outsiders as V. S. Naipaul and Michael Ondaatje (the author of The English Patient, 1992) necessarily misrepresent the European cultures they represent in their work. If the cultural experience argument cuts at all, it cuts both ways. The aesthetic success of the novels of Naipaul and Ondaatje shows that it does not cut either way. Advocates of the cultural experience argument neglect what is common to human experience but the thesis also makes no allowance for the exercise of the creative imagination. Many artists have succeeded in imaginatively entering into the lives of individuals from distinct cultures. Light in August (1932) was not written by an African-American. Yet Faulkner has the depth of insight, the imaginative capability, to reveal by his art what the experience of being African-American is like in a way that someone who has felt it perhaps could not. Light in August does not necessarily provide readers with a more distorted picture of AfricanAmerican culture than, for example, Toni Morrison’s Beloved (1987). Faulkner has not had the experience of living as an African-American, but he has fully imagined it and he has something to contribute to our understanding. Salman Rushdie makes this very point. Speaking of his experience of being an expatriate Indian who still writes about India, he 59

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says that “There are terrible books that arise directly out of experience, and extraordinary imaginative feats dealing with themes which the author has been obliged to approach from the outside.”35 The aesthetic success of Midnight’s Children (1981) and other of his novels is evidence that Rushdie is correct. Certainly, as I have allowed, some artists fail when they represent other cultures in their art. Artists, as much as anyone, can fail to overcome the prejudices of their home cultures. Perhaps all artists are, to some extent, limited by the perspectives of their cultures. Sometimes an inability to overcome prejudices can lead to aesthetic flaws and even works that are complete aesthetic failures. We ought not to conclude that artists who represent other cultures are condemned to failure. Enough examples have been given to undermine the plausibility of such a conclusion. Humans, for all of their cultural and other differences, are not so different that they are incapable of understanding each other.

Appropriation and the Authentic Expression of a Culture When we take subject appropriation into account, we can see another sense in which artworks by outsiders might be thought to be inauthentic. In this context, to say that a work of art is authentic is to say that it is an expression of the experience of one who has lived as a member of a culture. This sort of authenticity may be termed experience authenticity. Outsiders who represent other cultures will necessarily produce works that are not experience authentic expressions of the represented culture. (Note that experience authenticity is distinct from existential authenticity. An artist who produces an experience inauthentic work can nevertheless be fully committed to it.) One might think that, in consequence, the works of outsiders will be aesthetically flawed. I want to grant the premise but deny the conclusion. Outsiders cannot produce works that are authentic expressions of a culture they have not lived, but this does not entail that their works are necessarily aesthetically flawed. Audiences could very well be interested in reading novels, or viewing films, that are experience authentic expressions of a culture. Audience members might very well want to know how members of a culture view themselves. In such a case we can view experience authenticity as an

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Rushdie (1991), p. 14.

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aesthetic merit of an artwork. It is a merit that works by outsiders cannot possess. It is not, however, the only merit that an artwork can possess. A work can have aesthetic virtues precisely because it is not the work of an insider. The perspective of an outsider on a culture can be an advantage when it comes to producing works of art that provide insight into the culture. The best biography is not always autobiography. Frequently, we can learn something about ourselves from seeing how others see us. Similarly, sometimes people with a little distance, a little perspective, on a culture may in a position to interpret and understand it in a way that insiders cannot. Canadians could, for example, have a useful perspective on American political life (and, just possibly, vice versa) just because they are outsiders. More generally, people within a given culture may not be aware that some of their practices are questionable, that certain of their stories are myths, and so on. The perspectives of outsiders might actually give a more accurate representation of a culture than anything an insider can produce, even though the outsiders cannot produce experience authentic works. This is not to suggest that insiders do not have valuable perspectives on their own culture. Nor do I wish to suggest that outsiders do not have some limitations. Outsiders may be ignorant of certain aspects of a culture simply because they have not lived as a member of the culture and do not have another source of knowledge. It does not follow from the existence of such limitations that outsiders cannot accurately represent many aspects of a foreign culture in valuable ways. This said, it is important that outsiders not misrepresent the cultural experience in which their work is rooted. Provenance authenticity is a concern when it comes to the evaluation of works of art. As we have seen, in order to evaluate a work we need to know the category to which it belongs. This is relevant to our present concerns because, in evaluating a work of art, we may very well need to know the cultural background of the person who produced it. That is, we may very well need to know the culture of which it is an authentic expression. The category of works that are produced by insiders and the category of works produced by outsiders can be crucial in determining the aesthetic properties of an artwork. Consider, for example, The Education of Little Tree (1976). This work was originally published as the autobiography of a Native American who is taken from a residential school by a Cherokee and educated in the traditional ways of his people by his grandparents. The book was presented as an experience authentic expression of an American native 61

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culture. In fact, it was written by Asa Carter, also known as Forrest Carter, a racist and white supremacist. Carter was a member of the Ku Klux Klan and a speechwriter for George Wallace, the segregationist Governor of Alabama. (Carter wrote for Wallace the infamous line “Segregation now, segregation tomorrow, and segregation forever.”) The fraud perpetrated by Carter has a moral dimension. It is a form of lying and (given the absence of any mitigating factors) wrong. Here we are concerned with the aesthetic dimensions of the fraud. We have here a case of a work that is alleged to be an experience authentic expression of a culture but it actually expresses quite a different cultural perspective. This hinders and distorts the interpretation, evaluation, and appreciation of these works. The fraud is akin to that of which forgers are guilty. Initial reviews of The Education of Little Tree were strongly positive. One critic described it as “deeply felt.” An Abnaki poet and storyteller described it as “one of the finest American autobiographies ever written.”36 Whatever merits the book possesses, it is not deeply felt and it is certainly not an autobiography. It is possible that, once the book’s author was known, readers were able to detect observable aesthetic properties they had previously overlooked. A given passage in a book such as Little Tree might appear sensitive and moving if it is thought to have been produced by an insider. The very same words might seem condescending if we know that a racist wrote them. This is not to say that The Education of Little Tree is completely without literary merit. It is just to say that information about the cultural background of an artist can be relevant in the evaluation of their works. Or, to put the same point in another way, in evaluating a work of art we need often to know the culture of which it is an authentic expression. Again, I grant that outsiders cannot produce works of art that are experience authentic expressions of insiders’ culture, but this is not necessarily an aesthetic flaw. Even if experience inauthentic works are not necessarily aesthetically flawed, artists ought not to represent their works as an experience authentic expression of any culture but their own. This can lead to errors in aesthetic judgment. Artists who appropriate subjects can produce works of art that are authentic expressions of their own perspective and aesthetically valuable. Whether they ought to do so is another matter, one to which I turn in the next chapter.

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Gates (1991), p. 26.

Cultural Appropriation as Theft

Chapter 3

Cultural Appropriation as Theft

Harm by Theft There is an obvious way in which a culture could be harmed by cultural appropriation. Outsiders could take (without proper permission) property that rightfully belongs to insiders. That is, cultural appropriation could be a kind of theft and sometimes it is. This theft could take a variety of forms. It could be object appropriation that employs coercion or deception. Alternatively, outsiders could engage in content appropriation involving the unauthorized use of intellectual property owned by a culture. A discussion of subject appropriation does not belong in this chapter. In Chapter 1 I maintained that subject appropriation is anomalous in that nothing is taken from insiders. It follows that subject appropriation cannot be theft and it is not discussed in this chapter. As noted in Chapter 1, the only sort of theft across cultural lines that is of philosophical interest is theft of items that belong to a culture. Consequently, a great deal of this chapter will be devoted to an exploration of the conditions under which a culture owns property, including works of art and intellectual property used in the creation of art. Sometimes, there is no puzzle about how a culture can own property. This will often be the case when a culture is coextensive with a political entity. The political entity has institutions that enable the culture to acquire property that is held collectively. Consider again the Zuni Ahayu:da. The collective ownership of the War God figurines by the Zuni culture is no more puzzling than the collective ownership of a painting by the members of a college, or the collective ownership of a tennis court by the members of a club. The Zuni, acting through their institutions, commissioned and paid for the sculptures. A culture does not require formal 63

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institutions, such as the Zuni possess, in order to own cultural property. If a culture has few enough members, an informal agreement can exist that makes certain sculptures, paintings, and other items the collective property of a culture. Sometimes, there is a puzzle. As we saw in Chapter 1, many works of art are said to be the property of a culture but it is unclear how the works were acquired. The original owner of an artwork was an individual, a clan, a religious communion, or a state. In cases such as these we need to ask about the means by which ownership of some item of property comes to be transferred from the original owner to a culture. In the next section I will talk a little about who might own art. I will then devote several sections to an exploration of the possible bases for a culture’s ownership of a work of art (or anything else) when it has not been acquired via any institutions with which the culture is associated. I will consider whether a culture may inherit ownership of artworks. I will pay close attention to the implications of the fact that much property on which cultures have claims has, at certain points in its history, been lost or abandoned. Perhaps a culture’s ownership of artworks can be tied to laws and practices of the culture or collective ownership of traditional knowledge. Recently some writers have argued that ownership of art is tied to ownership of land. I will conclude, however, that the very value that certain works of art have for the culture is the basis of a culture’s claim to own certain items. After drawing some consequences from this conclusion, I will criticize an argument sometimes used to defend acts of cultural appropriation: the so-called rescue argument.

Possible Owners of Artworks Before we can begin to explore the question of whether a culture owns artworks or other property, we need to say a little about other candidate owners. The candidates for owners of a work of art or some elements of artworks include cultures but among the other possibilities are individuals, institutions, nations, and all of humanity. Sometimes an individual owns a work of art and a culture has no claim on it. This individual can be either a person (the person who created it, for example) or an institution (such as a museum). On the walls of my front room you will find a rather heterogeneous collection of paintings, engravings, and other works of art. They were produced by members of several cultures. I have no hesitation in saying that I am the owner 64

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of these works. I bought them from artists who produced them or from (so far as I know) dealers who had fairly acquired them. Similarly, institutions can uncontroversially be the owners of artworks that they have fairly acquired. The National Gallery of Canada is certainly the owner of Barnett Newman’s Voice of Fire (1967). It bought the work from Newman’s widow, who had inherited it from her husband. The fact that Newman was an American painter is irrelevant. An individual who owns works of high aesthetic value may have obligations to protect and exhibit them. Joseph L. Sax has written a fascinating book on this subject.1 Sax argues that the ownership of works of art is not as absolute as the ownership of a toaster or a microwave oven. When one owns something, one may dispose of it as one wills. Arguably, one may not do anything one pleases with a masterpiece. The owner of a masterpiece has obligations to the rest of humanity. Such owners may not, for example, simply destroy the works in their possession. Still, sometimes individuals own works of art. One also hears the suggestion that some works of art are part of the patrimony of a nation. (A nation could be identical to a culture, but often nations are multicultural.) This is the view adopted by the government of Mexico, which claims ownership of all pre-Columbian artifacts in the country. Similarly, in Scotland and Denmark all archaeological finds belong to the Crown.2 The same view is implicit in the 1970 Unesco Convention on the Means of Prohibiting and Preventing Illicit Import, Export, and Transfer of Ownership of Cultural Property. This convention implies that nations have a right to cultural property, which will include important works of art, within their borders. Nations are certainly sometimes the owners of works of art. The example of the National Gallery of Canada and Voice of Fire has already been mentioned. Since Canada owns the gallery, the nation may be said to own the painting. Still sometimes a nation’s claim to own works of art is not as strong as that of a culture. Consider Mexico’s claim to own all of the pre-Columbian artifacts within its borders. Mexico, like many nations, is a multicultural state. One of the indigenous cultures within Mexico may have a much better claim on pre-Columbian artifacts than does the nation as a whole. Mexico is composed of the descendants of the conquistadors as well as the descendants of the indigenous population. The nation as a whole had nothing to do with the creation of pre-Columbian artifacts and it is hard to see how the nation as a whole 1 2

Sax (1999). Gerstenblith (1995), p. 594. 65

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can be said to have inherited these artifacts. Certain artifacts will have much greater significance for certain segments of the nation than they have for others. A similar point can be made about the United States, Canada, and many other nations. In the case of culturally homogenous nations, the situation will be different. But in these cases, the nation’s claim on cultural property is identical to the culture’s claim. A multicultural state generally acquires its right to property by transfer from another nation or from an individual. A nation may, for example, purchase from artists some of their work. Similarly, some property may be acquired by purchase or gift from a culture. Certain pieces of cultural property, including some works of art, are held to be the common inheritance of all humanity. This is the view adopted in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The preamble to this document refers to cultural property, which includes works of art, as “the cultural heritage of all mankind.”3 The 1972 Unesco Convention for the Protection of World Cultural and Natural Heritage takes a similar stand. It classifies certain items of cultural property as “the heritage of all the nations of the world.”4 Let me begin by discounting the suggestion that the whole of humanity is the rightful owner of certain artworks. I am not unsympathetic to this suggestion. As we will see, it will often be difficult to identify an individual who has, or group of individuals who have, a clear claim to have inherited certain works of art. In such instances we may want to say that everyone has as good a claim as anyone else. If everyone has an equal claim on some item, we may say that it belongs to everyone. The trouble with this suggestion is that it often has, in practice, very little value. Perhaps certain items of intellectual property may belong to all of humanity, but the suggestion that tangible property belongs to everyone is not helpful. To say that intellectual property (say a story or a musical composition) belongs to humanity is just to say that it is in the public domain. That is, it is a part of what I will call the artistic commons. This term deliberately echoes Peter Drahos’ conception of an intellectual commons. The intellectual commons is composed of ideas that may be freely appropriated by anyone.5 The artistic commons is composed of those artistic elements (styles, motifs, general plots, and so on) that anyone is 3 4 5

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Found at http://www.icomos.org/hague/HaguePreamble.html. Found at http://sedac/ciesin.org/pidb/texts/world.heritage.1972.html. Drahos (1996).

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free to appropriate. If we are dealing with tangible property such as individual works of art, the situation is different. All of humanity can share some item of intellectual property in a way that they cannot share a sculpture or a stele. Even if we say that something belongs to humanity, the question of who ought to have custody of it still remains. The proposition that something is the patrimony of all does not assist us in answering this question. Although one can wonder whether artworks are owned in the same way that ordinary personal property is owned, at the end of the day we have to determine who ought to have them. The people who ought to have them might as well be called the owners. Finally, the notion that a culture can be the collective owner of cultural property is found in a number of quarters. One important source of the idea is a report prepared for the United Nations Office of the High Commissioner for Human Rights. One of the principles adopted there states that indigenous peoples’ “ownership and custody of their heritage must continue to be collective, permanent and inalienable, as prescribed by the customs, rules and practices of each people.”6 The notion is also found in a number of documents funded by national governments. In Australia, for example, we find reports making claims of this sort: “Indigenous Cultural and Intellectual Property is collectively owned, sociallybased and evolving continuously.”7 The indigenous peoples of North America have made similar claims. The Haida of the Queen Charlotte Islands have maintained that they ought collectively to own a sort of copyright on the stories of Skaay and other Haida storytellers. Other North American indigenous cultures have claimed ownership of all archaeological finds of items produced by their ancestors. Indigenous cultures are not the only ones said to have collective ownership of cultural property. A large legal literature is devoted to the question of whether the members of Greek culture collectively own the Parthenon Marbles. Icelanders have (successfully) argued that they have a right to the manuscript of the Flatejarbók, which records the journey of Leif Ericsson to North America and which was previously held in Denmark. Under various conditions, individuals, nations, and cultures all own various works of art. The challenge is to discover who owns what and, even more importantly, to discover the basis of a group’s or individual’s claim on some work. In the next section I turn to a consideration of the various bases a culture might have for ownership of some work of art. 6 7

Daes (1995). See Janke (1998), p. 8. See also, Mellor and Janke (2001), p. 71. 67

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Cultures and Inheritance Let us begin by considering the suggestion that cultures can inherit ownership of certain works of art. Someone or some group can be said to inherit something when their ownership is due to the testamentary wishes of a previous owner or owners. Unfortunately, the testamentary wishes of prior owners of artworks are often unknown or non-existent. In general, a culture will not be in a good position to claim to have inherited artworks or other property. The suggestion that a culture had inherited property would be completely uncontroversial if any individual or group, which owned something, left a final testament in which a culture is named as a beneficiary. Unfortunately, a culture is seldom, if ever, able to produce a will on which its claim to inherit property is based. Certainly, North American First Nation cultures are not able to provide notarized documents which establish their claim to artifacts, nor can Greek culture appeal to such documents in support of its claim to the Parthenon Marbles. The absence of a formal will does not, by itself, undermine a culture’s claim to have inherited an item of cultural property. In many instances, someone or some group inherits an item of property despite the absence of a formal testament. A variety of considerations lead, however, to the conclusion that a culture will seldom, if ever, inherit artworks or elements of artworks. Since testamentary wishes are often unknown, a culture’s claim to have inherited certain works will often be dubious. In some cases, a culture’s claim to have inherited an artwork will be worse than dubious. Sometimes we can be reasonably certain that the previous owners of some item would not have wanted a contemporary culture to inherit their property. Consider some item that was not owned by a culture as a whole. It was the property of an individual, family, clan, state, or religious communion. The item in question might be the Parthenon Marbles or a medicine bowl produced by a member of some North American First Nation. One would expect that owners intended that the item remain the property of a family, clan, state, or communion. In many cases, however, the presumptive beneficiary no longer exists or cannot be identified. The state of Athens, for example, no longer exists, certain religious communions have become extinct and the lineal descendents of some past owners are often unknown. One might think that, under such circumstances, the previous owner would wish that the members of their culture inherit their property. Often we make counterfactual 68

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assumptions about the intended beneficiaries of people who die intestate. A man dies intestate, for example, and we assume that he would have willed his estate to his wife or, should she have predeceased him, his children or siblings. The law codifies these counterfactual assumptions. Similarly, one might think that, should more immediate heirs not exist or not be identifiable, people would intend that their culture be the beneficiary of last resort. If this is right, a culture could claim to have inherited certain items of cultural property. The counterfactual claim that previous owners would, under certain circumstances, have intended that the members of their culture become the owners of some artwork is baseless speculation. It strikes me as just as likely that some persons or groups in the past, given the end of a lineage or the demise of an institution, would have wished that their property pass to those in the present who can make the best use of it. Alternatively, people might have intended that their possessions become the property of the people best able to ensure their artworks receive the widest possible audience. Perhaps some ancient Irishman would have wished that his illuminated manuscript be held in America, where most of his descendents are likely to be found. I do not see any way to choose between these counterfactuals in a principled fashion and I doubt that any of them is true. Sometimes the suggestion that people in the past would have intended that a culture as a whole inherit property is pretty obviously false. Consider again the Parthenon Marbles. The idea that fifth-century Athenians would have wished that Spartans and Thebans, their bitter enemies, but part of Greek culture, be among the collective owners of the Marbles is pretty implausible. Or consider the Mount Newton Cross Roads Stone Bowl. It was found near Victoria, British Columbia, in about 1880 by a farmer and was recently the source of controversy when a Chicago collector tried to export it. The Saanich people claim collective ownership of the bowl, which they call SDDLNEWHAWALA.8 The Saanich people may have a right to the bowl, but they have not inherited it. Two thousand years ago, when SDDLNEWHAWALA was carved, the Saanich peninsula was inhabited by a collection of clans. One might reasonably surmise that the original owners would have intended that the bowl continue to belong to members of their clan, or one of the houses of which the clan was composed. The original owners may or may not have been among the ancestors of the current Saanich people. Even if 8

For a discussion of the bowl see Henry (1995). 69

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they were, they are unlikely to have intended that the bowl pass to members of other Saanich clans, with whom they may not have been on good terms. They are likely to have preferred that completely unrelated people gain possession of it, or that it perish instead. The ethnographic literature is full of instances of peoples who are quite happy to share stories and songs, as long as they are not made available to near neighbors of the people in question.9 It is probable that people would often be similarly reluctant to give tangible cultural property to local rivals. I do not believe that any dubious or peculiarly Western conception of inheritance is presupposed in my argument. It is true that patterns of inheritance differ from culture to culture. Those common in the West are not necessarily practiced in non-Western cultures. Nothing in my argument here turns, however, on peculiarly Western patterns of inheritance. I am simply presupposing that respect for testamentary wishes lies at the core of the concept of inheritance. If a culture wishes to use the concept of inheritance as the basis of its claim to works of art, then it must hold that its claim flows out of the testamentary wishes of people who were the previous rightful owners. I have argued that there is room for doubting that testamentary wishes would very often have made cultures as a whole the owners of artworks. Just as nothing in my argument should be taken as presupposing a Western conception of inheritance, nothing here should be taken as presupposing a liberal conception of property, in which an individual person has full rights to dispose of his property as he wishes. In many cultures, a number of individuals have rights in a single item of property. This is true in legal regimes as diverse as those of traditional Hindu law and the law of various Australian aboriginal groups. This point does not, however, threaten the line of argument advanced in this section. The situation simply becomes a little more complex. If a culture claims to have inherited a right to cultural property, it must do so on the basis of the intentions of a number of people (perhaps all members of a religious communion, or the members of a clan).

Lost and Abandoned Property This section will examine how the loss or abandonment of property affects the debate about ownership of artworks. Let us assume that a 9

For an example of indigenous people’s unwillingness to share songs with indigenous neighbors, see Seeger (1997), p. 56.

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culture could be said to inherit certain artworks or elements of artworks. A culture’s claim to have inherited certain artworks, even if it could withstand my earlier objections, will often be undermined by the fact that works cultures claim to have inherited are abandoned property. If property is abandoned, those who originally owned it have forfeited their claim to it. One cannot inherit something from someone who has abandoned it. Finders of the property need not seek anyone’s approval for their appropriation. Lost property is another matter. The strength of a finder’s claim to property depends in large part on particular circumstances. Common law rightly draws a distinction between lost and abandoned property.10 The crucial difference between abandoned and lost property is a difference between the intentions of the original owners. One who abandons property intends to give it up. One who has lost property has no such intention. Abandoned property is deemed in common law to have been returned to a state of nature and may be appropriated by the first person who finds it. From a moral perspective it seems clear that this is at least partly right. (It is only partly right because, as will emerge, under some circumstances, a culture may have a claim on some abandoned property.) Suppose I leave my old toaster out in the garbage for the city to collect. It is carted off to the municipal dump where someone recovers it. I cannot reasonably claim that this person has stolen my toaster. I cannot do so even if I subsequently learn that it is a valuable collectible, a rare 1962 General Electric Toast-O-Matic, worth a fortune. The case of lost property is different. A finder of lost property acquires a right against everyone – except the rightful owner of the property. If the rightful owner can be identified, then the finder loses all rights to the property. People who own property do not forfeit the right to the property by losing it. Now the question becomes that of whether archaeologists (among others) discover lost or abandoned property when they dig up some work of art. Unfortunately, a single, simple answer to this question is not available. Sometimes it is clear that outsiders have wrongly appropriated property that has not been abandoned. Consider again the Zuni War Gods. As noted above, many of the Ahayu:da were recovered and found their way into museums and private collections. This was clearly wrong. The Zuni had formed no intention to abandon their property. Consequently, they retained their right to the sculptures. 10

For a good discussion of the bearing of common law on tangible cultural property, and citations of the legal authorities, see Gerstenblith (1995), pp. 590ff. 71

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The treasures from the sixth-century Church of Sion provide another case where we are probably dealing with lost property. These works (chalices and church ornamentation in silver and gold), originally from the Turkish village of Kumluce (ancient Korydalla), were looted in about the seventh century and only rediscovered in 1963. The farmer who found them sold about half of them to a Swiss antiquities dealer. These found their way into Harvard University’s Dumbarton Oaks Research Library and Collection in Washington DC. Turkish officials recovered the remaining pieces and they are now on display in Kumluce. The ownership of these works is hotly debated. Dumbarton Oaks claims to own its share of the treasures and the Turkish government is equally insistent that it is the rightful owner of them all. Both are wrong. The Greek Orthodox Church was presumably the original owner of the works and we can be quite sure that the Church intended that they continue to be its property. We can be quite sure that the Church did not consent to the looting. Above I noted that religious communions can perish and when this happens works intended to remain the property of the communion are not inherited by anyone. This is not the case here. The Greek Orthodox Church has existed continuously since the Church of Sion was established. The treasures found in 1963 remain the Church’s property. Other artworks seem more like abandoned property. Imagine a situation, quite common in the nineteenth century and even in much of the twentieth, where archaeologists recover artworks about which the local population does not care in the least. The local population may be assumed to be the inheritors of the culture of those who produced the property in question. Suppose that some sculptures and works of architecture are lying about neglected and even abused by the local population. They break off pieces of statuary for use in building cottages and fences. (They do so, not out of necessity, but because reusing the stone is easier than quarrying new building materials.) This situation differs from the one in which I throw away my Toast-O-Matic. The original owners have formed no explicit intention to abandon their property. Nevertheless, the actions of the local population amount to an abandonment of any claim to have inherited the artifacts produced by their ancestors’ culture. Under the circumstances, outsiders (archaeologists, say) do not seem to act wrongly if they cart off everything they can find. Once a proprietary right to something has been abandoned, it generally cannot be recovered if someone else has established a claim. Suppose that archaeologists carry off finds to a foreign country. At the time 72

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the property is exported, the local population cares nothing for it and has abandoned it. Even were they to be in possession of all available information about the artifacts, let us imagine, they would still not have objected to the export. They may have changed religion since the artworks were created and regard the artifacts as worse than worthless: blasphemous pagan monstrosities, perhaps. (Imagine that the vast majority of Afghans agreed with the Taliban’s view of pre-Islamic artifacts, such as the sculptures of the Buddha at Bamiyam, destroyed in March 2001.) Suppose now that the local population subsequently changes its views about the exported property. Now the population values it. Under the circumstances, if its claim to ownership of the property depends on its having inherited a right to it, its change of heart comes too late. The situation is analogous to my abandonment of my Toast-O-Matic. After you have recovered it from the dump, and discovered its value, it is too late for me to reclaim my ownership on the grounds that I inherited the toaster from my grandmother. The case just described is similar to that of the most celebrated and controversial instance of the appropriation of tangible works of art. I refer to Lord Elgin’s removal of the Marbles from the Parthenon, beginning in 1801.11 By all accounts, the locals were quite happy to knock off pieces of the Parthenon for sale to tourists. When the House of Commons investigated the removal of the Marbles, it asked about the views of the Greeks. An eyewitness reported that, “Among the Greek population and inhabitants of Athens it occasioned no sort of dissatisfaction . . . so far from exciting any unpleasant sensation, the people seemed to feel it as the means of bringing foreigners into their country, and having money spent among them.”12 Whether or not the Parthenon Marbles were abandoned, many museums may claim to be holders of property that was abandoned by its original owners. When property is abandoned, it may be freely appropriated. Some works of art seem to fall into this category and this further undermines the suggestion that certain works were inherited by a given culture. (This is not the final word on the Parthenon Marbles. A subsequent section will show that Greek culture could have a claim on the Marbles even if they were abandoned at some point in their history and so they cannot have been inherited.) 11

For a discussion of the circumstances of the removal of the Elgin Marbles, see Merryman (1985). 12 Report from the House of Commons Select Committee on the Earl of Elgin’s Collection of Sculptured Marbles, 25 March, 1816, pp. 433–4. 73

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Cultural Property and Traditional Law Even if a culture does not inherit artworks, it could still base its claim to ownership of certain items on other grounds. A culture’s stake in works of art or intellectual property is often said to result from traditional practices, particularly legal practices, of the culture. Undoubtedly some cultures have laws or traditional practices that classify certain items as the property of the culture as a whole. The laws of a culture are, however, not the only factors relevant in determining ownership of artworks and artistic elements. Appeal to the traditional laws of a culture tends to be made in two sorts of cases. The first is one where a culture makes a claim on the ownership of particular works of art. These can be stories, songs, or tangible works. A example of law that makes tangible works collective property is provided by the law of the Yolngu, an indigenous Australian culture. In this culture, certain carvings of ceremonial significance are regarded as the property of the entire culture or of a clan within the culture. In other cultures, laws are said to make ancient (unattributed) works collective property. The second sort of case involves ownership of artistic elements. Insiders wish to restrict the use of certain designs, motifs, and patterns by outsiders. They do so on the grounds that a certain pattern, say, is according to the law of a culture owned by the culture as a whole. Alternatively, a culture’s law may state that a clan or another constituent of the culture owns some style or design. In this section I will focus on ownership of particular works of art. In a subsequent section I will consider the suggestion that certain basic artistic elements are collectively owned. One solution to questions about ownership would be to consult the norms of the culture from which something is being appropriated. This is the approach advocated in the first article of the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples. It states that indigenous peoples ought to be free to “Define for themselves their own intellectual and cultural property.” Similarly, the First Nation lawyers Marie Battiste and James (Sa’ke’j) Youngblood Henderson hold that we are obliged to respect “Indigenous peoples’ laws and institutions.” Such law defines “what constitutes property, identifies who has the right to share knowledge and property, and determines who is to benefit from and who is responsible for such sharing.”13 The same point could be made about any culture, not just those of indigenous peoples. 13

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Battiste and Henderson (2000), p. 144.

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Clearly, however, the laws of a given culture are not the sole relevant factors in determining ownership. After all, the laws of a culture may be unjust. Let me give an example. In 1994 an American writer, Marlo Morgan, published Mutant Message Down Under, which purported to be her account of a journey through Australia with some aboriginal people. Morgan claimed that these people shared secret sacred knowledge with her. Many authorities are skeptical about the claim that Morgan made the journey described in her book but let us suppose that she did. Robert Eddington, an Australian aboriginal leader, states that, “If she has done what she claims to have done without iniatic right it is punishable by death under Aboriginal Law.”14 Obviously, whatever cultural appropriation Morgan may have performed, she ought not to be put to death. This is an extreme example, but it illustrates that the law of a culture is not always the final arbiter. The laws of many cultures are supposed to include an acceptance of the collective ownership of certain items, including artworks. Suppose that this is so. It may still be the case that the works in question ought to belong to an individual or individuals. Before I consider whether a culture’s laws are just when they say something is collective property, we should ask how common such laws actually are. One can doubt that the requisite laws are very common. Of course, it is difficult to generalize on this point. Potentially, one will be able to identify as many different laws and customary practices as one can find cultures. Nevertheless, a good bit of evidence suggests that a work of art usually belongs to its creator in most cultures. The Haida have claimed collective ownership of the poetry of Skaay and Ghandl. The history of the recording of the stories seems to indicate that stories belonged to the tellers. In 1900, John Swanton, an American anthropologist, began collecting myths in the Queen Charlotte Islands by approaching Sghiidagits, the hereditary leader of the community at Skidegate, and paying him for the right to record his stories. Swanton seems to have satisfied Haida customs by first approaching the headman. When Sghiidagits no longer had any stories to sell, Swanton was free to buy stories from others. It was then that he was introduced to Skaay, and paid him for the right to record his stories.15 Other sources indicate that the traditional practice among West Coast First Nations is that storytellers 14

Quoted in Janke (1998), p. 23. For an account of Swanton’s dealings with the Haida see Bringhurst (1999a), pp. 71ff.

15

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own their stories.16 (I do not want to maintain that there was nothing suspect about Swanton’s recording of Skaay’s stories. At first blush, nothing seems wrong but one must remember that in 1900 Haida culture was severely traumatized. Over the course of the nineteenth century, the population of Haida Gwaii (the Queen Charlotte Islands) had dropped by approximately 90 percent, mainly due to smallpox and other scourges. The surviving people had been deprived of most of their land, relocated, and converted to Christianity. European settlers held all of the power and the interests of First Nations were routinely disregarded. One can reasonably wonder whether any transaction between members of native cultures and Europeans was free of coercion.) The custom among northwest coast First Nations of vesting ownership of stories and other cultural property in individuals is not in the least uncommon among other indigenous cultures. Although Australian aboriginal cultures are often said to hold works of art and intellectual property (designs, motifs, and songs) collectively, the practice of many aboriginal cultures indicates otherwise. Aboriginal artists routinely create works which they sell for their own exclusive benefit. In the landmark Australian legal case, Bulun Bulun and Anor v. R & T Textiles, where collective ownership of cultural property (among other matters) was at stake, the court could find no evidence of an agreement between the artist and his community that would make the culture part equitable owners of his works.17 (I will discuss this case more below.) A similar reality is found throughout North America. Lip service may be paid to collective ownership, but the practice of many indigenous cultures is to grant artists ownership of the works they produce. The suggestion (embodied, for 16

See, for example, St Peter (1989), p. 503: “a Native story belongs to the teller and no one can retell it without the owner’s permission.” See also, Muckle (1998), p. 54: “some stories, dances, and music of the First Nations peoples were subject to ownership by individuals or kinship groups.” 17 In the words of the judgment: The artwork, when completed, was sold by Mr Bulun Bulun to the Maningrida Arts and Crafts Centre. It is not suggested that he did not receive and retain the sale price for his own use. Moreover, the evidence indicates that on many occasions paintings which incorporate to a greater or lesser degree parts of the ritual knowledge of the Ganalbingu people are produced by Ganalbingu artists for commercial sale for the benefit of the artist concerned.

The judgment continues: “There is no usual or customary practice whereby artworks are held in trust for the Ganalbingu people.” Consulted at http://www.austlii.edu.au/ au/cases/cth/federal_ct/1998/1082.html. 76

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example, in the UN document cited above) that collective ownership of cultural property is a universal feature of indigenous cultures is a myth. It is also important to note that law is continuously evolving and must adapt to circumstances. A law that was appropriate in the context of a stone-age hunter-gatherer society may be unable to cope with new conditions. These conditions include a movement from a situation where cultures were relatively isolated to one where they are part of multicultural nations. This may be regrettable, but it is also undeniable. In particular, the institutions of indigenous peoples have evolved in response to the imposition of a market economy. At one time certain types of works were not fungible. Now the production and sale of these works is an important part of the economic activities of many cultures. We need to respect the current institutions and laws of cultures, not those that existed in the past. When laws are not codified, the best guide to the laws of a culture will often be its practices. Currently, in most cultures, including most indigenous cultures, practices indicate that artists are the sole initial owners of the works they produce. I say ‘initial owner’ because artists may transfer ownership of the works they produce. They may sell them or make gifts of them. Still some cultures may have a law that specifies that all works of art produced by individual members are owned in common. If there is such a culture, the law is unjust. I take it that there is something obviously right about Locke’s belief that the creator of property (whether intellectual or tangible) obtains a claim on property that is lacked by people who have nothing to do with its creation. This claim is not indefeasible, but the members of my culture (however that is to be defined) would lack a claim that I have on any novel or painting I may produce. Even if a law existed claiming collective ownership, my culture would not have as good a claim as I have. Similarly, jazz and blues were developed in the context of African-American culture, but royalties are owed to the individual musicians who wrote the songs and performed them. They are not owed to all African-Americans. The same is true of people who produce original artworks in the contexts of other cultures, including indigenous cultures, regardless of what traditional laws may be common in these cultures. And, as I have indicated, the practices of many indigenous cultures, where individual artists own artworks and are the sole beneficiaries from the sale of artworks, indicate that even many indigenous legal regimes agree on this point. In some contexts the laws of a culture capture a moral truth when they specify that some work of art is the property of the entire culture. 77

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Consider, for example, anonymously created tangible artworks of great antiquity. (I have in mind rock art and so forth.) Sometimes these works can have considerable importance for a culture and a culture’s traditional laws may specify that they are the patrimony of the entire group. Here, however, the basis of a culture’s claim is the great value of the work to members of the culture. The culture’s law recognizes and does not create the culture’s collective claim on the property. I will return to this point in a subsequent section. I need to mention one more way in which the traditional laws and practices of a culture might ground a culture’s ownership of some item. Some cultures believe that the gods or ancestor beings gave them certain artistic elements (typically these are stories, songs, designs, and so forth) or works of art. In these cultures, the basis of claim on some item is that the culture received it as a gift from someone who owned it. I am skeptical about this sort of claim. If there is a question about how something (say a style or a story) can be owned, there is a question about how a god or an ancestor being can own it. More importantly, claims to have been given something by the gods or ancestor beings are false. Many anthropologists and others take these claims seriously and speak as though the claims are true, but they are not. When they are false they cannot provide a sound basis for a claim to ownership. One ought, of course, to respect a culture’s beliefs. To pretend that mythological beliefs are true, when one knows them to be false, is not to show respect. Rather, it is condescending and demeaning.

Collective Knowledge and Collective Property I have expressed the view that a culture has no claim on the original products of its members. The reference to originality here is crucial. A culture is often said to be the collective owner of some artistic property precisely because the property is not regarded as the original product of a single individual or identifiable group of individuals. It is thought to be collective property because it is a collective product. This position is right whenever an item of cultural property genuinely is the collective product of a culture. I doubt, however, the claim that works of art are often, or perhaps even ever, so much the collective products of a culture that they become the property of the culture as a whole. In particular, I doubt the claim that an artist’s use of the traditional knowledge of his culture makes his work a collective product and, consequently, collective property. 78

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In Bulun Bulun we find a case where use of collective knowledge is supposed to make something the collective property of a culture. This suit alleged that the unauthorized reproduction of Johnny Bulun Bulun’s painting, Magpie Geese and Waterlilies at the Waterhole (1980), violated the property rights of the entire Ganalbingu people and not just the rights of the painter. For this reason, George Milpurrurru, an elder of the Ganalbingu people, was named as a second applicant.18 The presiding judge, Mr Justice von Doussa, noted in his judgment that Milpurrurru maintained “that the traditional Aboriginal owners of Ganalbingu country are the equitable owners of the copyright subsisting in the artistic work.”19 The claim of the Ganalbingu was founded on two points. The first was that the clan had authorized Bulun Bulun to use religious knowledge and customs, which are the collective property of the clan, in producing the painting. The other was that the clan owned stylistic motifs employed in the painting. The dependence of the painting on the use of collectively owned intellectual property is thus supposed to have given the Ganalbingu as a whole a stake in the painting. Similar claims are sometimes made about stories and songs. Certain stories, for example, are held to be the collective property of a culture because they make use of myths and legends that are the collective property of the culture. The claim that property is collectively owned because collectively produced is initially plausible. All individuals are part of a culture which is partly responsible for their achievements. Artworks, in particular, grow out of a cultural tradition and are not simply the result of an individual’s efforts. (If the general approach adopted in this essay is a liberal one, it is liberalism of Will Kymlicka’s sort, which recognizes that individuals are part of a community.20) The greatest artworks are the culmination of a tradition. Bach’s music, for example, is the culmination of a north German and, more generally, European tradition of polyphonic composition. Nevertheless, I am still skeptical about the claim that artworks that grow out of a cultural tradition are collectively owned. My skepticism has two bases. The first, already mentioned, is that not every member of a culture has something to do with the production of artworks. Not everyone who shared in seventeenth-century north German culture contributed something to the tradition that gave rise to the St Matthew Passion (c. 1727). It is hard to see how someone who had 18 19 20

For a good discussion of Bulun Bulun, see Brown (2003), ch. 2. http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/1082.html. Kymlicka (1989), ch. 2. 79

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nothing to do with its production has any claim on it. At least, the claim is not the product of how the item was produced. A similar point can be made about any culture, including that of the Ganalbingu. I have a second reason for doubting that cultures can base a claim to ownership on collective production. Although works of art grow out of a tradition, the aesthetic value of virtually any work of art is the product of some individual’s genius. Virtually anyone can, with a little training, compose a fugue in four part harmony. Nevertheless, almost no one can write a fugue that has anything like the aesthetic value of a fugue that Bach could improvise at the drop of a hat. In general, it is the contributions of the individual artist which give some work aesthetic value. I take it that this is part of what Bringhurst is arguing in his study of the great Haida poets. Writing of Skaay’s “The One They Hand Along,” Bringhurst says: There are many other stories in the world that speak of kidnapped women who are retrieved, and many other stories of journeys to the bottom of the sea, but to the best of my knowledge, no stories we could really call “the same” as this one have ever been recorded in any language or at any time. The story is one artist’s individual work.21

Skaay’s stories grew out of a tradition, but many stories in the tradition were pedestrian, as are the works produced in any tradition. Since Skaay produced his stories, he has a stronger claim on them than any other member of his culture (unless he freely ceded ownership to his culture and, as I have noted, this seems not to have been the Haida practice). The same is true of what other artists produce, regardless of the culture to which they belong. (I wonder if a sort of prejudice lurks behind the suggestion that the art of indigenous peoples is communally produced. It is almost as though individual members of indigenous cultures are thought to be incapable of creativity.) Another argument can be advanced in defense of the conclusion that a culture can claim that certain items of cultural property are collectively owned. One could hold that artists, in creating their works, employ artistic elements that are collectively owned by a culture and that this gives a culture a stake in the artworks produced by its members. Alternatively, a culture could be held to own collectively some religious or other knowledge that is employed in producing works of art. (Some 21

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cultures have a system of authorizing artists to use certain religious motifs and to depict certain subjects.) I do not believe that cultures collectively own artistic elements or knowledge. Consequently I reject this way of arguing for a culture’s ownership of artworks. Certainly some cultures regard some artistic elements as collective property. On this point the anthropological evidence is quite clear. In the cultures of certain Australian aboriginal clans, certain styles and designs are traditionally regarded as the property of the clan. Among the Yirritaja of Australia’s Northern Territory, for example, certain patterns (consisting of diamonds, pointed ovals, repeated triangles, and so on) are associated with ancestral beings. According to Howard Morphy, “Although a number of clans of the same moiety may be linked to the same set of Ancestral Beings, each clan will own its own version of the design associated with the set.”22 The X-ray or rarrk style of painting is often regarded as a generic Australian aboriginal style. In fact, it is from a specific area of Arnhem Land and is customarily regarded as the property of a specific clan. The Aboriginal and Torres Strait Islander Arts Board (of Australia) has accepted that certain forms of cross-hatching and uses of dots are the collective property of aboriginal clans or cultures.23 Similarly, people have objected to the appropriation of the “Sante Fe style” or the “Southwestern look.”24 The Maori have sometimes been held to be owners of an even more basic artistic element, the koru. A koru is simply a curved line with a bulb at one end. It was and is found in Maori kowhaiwhai style of art, typically found on painted rafters. Pakeha artists have appropriated the koru motif for many years. Although certain cultures claim ownership of artistic elements, I do not believe that a culture can own the artistic elements from which artists fashion works of art. In any common law jurisdiction, a copyright is granted only to a specific expression of an idea. A general idea for a novel or an idea for the subject of a painting cannot be copyrighted. I believe that legal practice here captures an important moral truth: an individual or group is only entitled to concrete items of cultural property. Shakespeare, for example, was entitled to own (for a reasonable term) a copyright on Romeo and Juliet (1597). In contrast, no one has ever been entitled to a copyright on a plot featuring star-crossed lovers from feuding families, a common enough plot in a variety of cultures. No 22 23 24

Morphy (1983), p. 119. Janke (1998), p. 254. M’Closkey and Halberstadt (2005). 81

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individual has ever owned a copyright on such a plot and neither has a culture. Similarly, individuals or cultures cannot own styles, motifs and other general ideas. Part of the justification for a judgment of this sort is given by practical considerations. It would be impossible to individuate styles in a way that would make ownership possible. The styles that groups claim to own are scarcely unique. Patterns of cross-hatching that some Yirritaja clan claims to own may be very hard to distinguish from a pattern employed by members of the Djenne culture (in modern-day Mali) in the fifteenth century. Or again the pattern may closely resemble one used by artists of certain Celtic or Middle Eastern cultures. The suggestion that a particular pattern of cross-hatching belongs to one of these cultures is implausible. Similarly, dot painting has been practiced in a variety of cultures, not just certain indigenous Australian cultures. Reflection on the pointillism of Seurat and Pissaro is enough to establish that no one culture owns dot painting. Any granting agency that attempted to restrict the use of a pattern or style to members of one culture would be deeply misguided. Another practical difficulty arises from the fact that an enormous amount of cross-fertilization has occurred between cultures. Again the experience of John Swanton in Haida Gwaii is instructive. The three stories Swanton was told by Sghiidagits, just after his arrival in the islands, did not originate among the Haida. One was a widely told story about a woman who married a grizzly bear. The others were versions of stories borrowed from the Tsimshian culture of the mainland.25 Nothing was in the least unusual about Sghiidagits borrowing Tsimshian plots. It was what artists have done everywhere and always. This sort of borrowing would, however, make difficult, if not impossible, any attempt to say which culture is the rightful owner of a plot, or a similar artistic element. Suppose that this practical concern could be satisfactorily addressed. A principled reason would still exist for denying an individual or group ownership of a style, a plot, or another general idea for creating cultural property. Modern copyright law, as it stems from the Berne Convention, captures an important moral truth. A balance ought to be struck between the interests of artists and the interests everyone has in innovation, unconstrained creativity, and the free exchange of ideas. Restrictions on the use of artistic elements such as styles and plots would not strike the right balance.

25

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Bringhurst (1997), p. 71.

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The concrete results of the work of individuals and groups of individuals ought to be protected by copyright. In this way artists and others are encouraged to be creative. (Even these concrete results are, and ought only to be, protected by copyright for a limited period.) A similar reason cannot be given for recognizing copyright in general ideas, plots, styles, and similar artistic elements. Creativity would not be given much, if any, protection by such a copyright. On the contrary, the innovation that results from the free exchange of ideas would be undermined. We would be denied the valuable works of art, some of them mentioned in the final section of Chapter 1, that have resulted from the appropriation of styles, motifs, and plots. Consequently, styles, patterns, plots, and so forth ought to be in the artistic commons. Even the interests of indigenous artists would not be well served by restrictions of the use of basic styles and patterns. Michael F. Brown has observed that such regulations are more likely to serve the interests of large corporations, with a stable of lawyers at their beck and call, than artists from a minority indigenous culture.26 The Mbuti (a pygmy culture) may try to have recourse against the Sony Corporation if artists on its label appropriate the basic styles and forms of the culture’s flute playing. Sony may similarly try to sue some unknown indigenous musician for imitating the basic style of Michael Jackson’s music. Like Brown, I suspect that Sony is more likely to prevail. This is only a practical consideration, but one that indigenous artists would be unwise to ignore. One could attempt to prevent undesirable outcomes of this sort by only granting ownership of styles and patterns to minority indigenous cultures. Such an attempt to recognize rights to exclusive use of certain styles or patterns would have another unforeseen and undesirable result. Very likely it would lead to conflict between indigenous cultures. Already these cultures are constantly borrowing from each other. The Visual Arts Committee of the Australia Council, the premier organization for the support of the arts in Australia, has published guidelines encouraging each aboriginal group to develop its own designs and not to borrow from other cultures. It refuses to fund aboriginal artists who borrow from other aboriginal cultures. Despite this, “the committee still receives submissions of work which contravene copyright of other artists by using designs such as X-ray, rarrk, cross-hatching, specific dot-designs, Quinkin and Wandjina.”27 (In this passage ‘copyright’ is not being used in a strict, legal 26 27

Brown (1998), p. 203. Janke (1998), p. 254. 83

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sense. Australian courts do not recognize rights to patterns or styles.) In this context, it is also instructive to recall the work of Brian Jungen, mentioned in Chapter 1. He is another example of an artist from an aboriginal culture who appropriates motifs from other aboriginal cultures. I conclude from these reflections that one possible basis for a culture’s claim on cultural property has been undermined. A culture does not own the traditional knowledge of styles, plots, and so forth that artists use in producing cultural property. These basic artistic elements properly are a part of the artistic commons. Any argument that depends on the premise that cultures own traditional knowledge of this sort will be unsound. This conclusion may seem too hasty, particularly if an artist is only able to produce some work because he has been initiated into some religious mystery or otherwise given access to secret stories. It is often suggested, for example, that aboriginal cultures in Australia have a claim on cultural property when it embodies some of their religious beliefs. The lawyers for the plaintiffs in Bulun Bulun, for example, argued that the artist “is authorised or permitted by the traditional [clan] owners to depict the matters contained in the artistic work, and does so for the benefit of those traditional owners and under their overall direction.”28 This is supposed to give the community a collective copyright. Similar claims are made about artworks produced by members of North American First Nations. I do not see that the fact that artists employ traditional religious knowledge in creating works of art changes matters in the least. Of course, I doubt that the proposition that Barnda, a long-neck tortoise, is the creator of the world counts as knowledge. Even if it were knowledge, it is hard to see how the Ganalbingu own it. If true, it is a piece of knowledge about the world to which anyone is entitled. It can no more be owned than can the knowledge that the atomic number of gold is 79. Moreover, I cannot see how the Ganalbingu own the right to depict Barnda any more than Christians own the right to depict the Crucifixion. I am not saying that the unauthorized use of religious beliefs and themes by nonmembers of a culture is unproblematic. Unauthorized use of such material can be profoundly offensive and as such morally suspect. (I will return to this point in Chapter 5.) The fact that artists employ the religious beliefs of their culture in creating art does not, however, give other members of the culture a claim on what they produce. 28

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Quoted in Brown (2003), pp. 45–6.

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Ownership of Land and Ownership of Art Recently lawyers have explored the possibility that a culture’s ownership of land gives it a claim on art as well. This line of argument has been heard in Australia as a result of the landmark Mabo legal decision. In this decision, the Australian High Court ruled that the transfer of sovereignty to the Crown did not extinguish aboriginal title to land. Aboriginal people retained common law rights to ownership. Some lawyers saw Mabo as an opportunity to open up a new way to defend aboriginal ownership of artistic elements, such as designs. (Copyright law had not extended to aboriginal cultures the range of control over artistic elements that they hoped to achieve.) The Mabo-based argument runs as follows. Aboriginal art is aboriginal land. Aboriginal cultures own aboriginal lands. Therefore aboriginal cultures own aboriginal art. The argument is simple enough. Let us call this the identity argument. The controversial premise is the first. The premise has found advocates. Stephen Gray attempts to defend the first premise by appealing to anthropology and deconstructionism. Anthropologists report that in the Yolngu culture of Australia’s Northern Territory the link between the culture’s land and their art is an intimate one. Gray takes from this that the “Yolngu view of the relationship of art to land focuses on the essential sameness of art and land: they both form part of the same coin.”29 Gray is just one example of a writer who attributes a non-Western metaphysical view to an indigenous people. It is common to hear the claim that according to indigenous peoples, “knowledge is indistinguishable from land and culture.”30 While the Yolngu and others are held to believe that land and art are identical, they are also credited with the view that land and art are different. To attribute these views to the Yolngu is to attribute to them a contradiction. Fortunately, “Yolngu culture is more able than Western culture to entertain two simultaneous and opposed perspectives, and more capable of resolving the apparent contradictions which arise.” Deconstructionism enables Western culture to catch up with the Yolngu. Armed with deconstructionism, we can see that the view that art and land are identical and the view that they are not identical are both “the contingent product of cultural priorities, and that neither necessarily represents 29 30

Gray (1993), p. 11. Barsh (1999), p. 40. 85

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the whole truth.”31 The Yolngu culture is not the only one that could potentially ground a claim to the ownership of art on this argument. Any culture with land claims could run the same argument. One can respond to the identity argument in a number of ways. A few spring immediately to mind. One might express skepticism about whether the Yolngu hold the views attributed to them. They may very well believe that their art is closely tied to their land. This is a plausible view. Many artists derive inspiration from their native land. Think, for example, of the link between the Romantic poets and the English countryside. Probably Yolngu artists are similarly linked to their land. According to some authorities, every Yolngu painting is a coded representation of some part of their ancestral land.32 Still, one might think, they believe that a painting is not a piece of land. One might also be skeptical about the claim that the Yolngu are as cavalier about the principle of non-contradiction as anthropologists suggest. One might also doubt the usefulness of postmodern deconstruction. If acceptance of deconstructionism requires abandonment of the law of non-contradiction, few philosophers will be willing to adopt it. (That said, it is worth noting that in classical logic everything follows from a contradiction. So there is a quick route from deconstructionism to the conclusion that cultures can own art.) I will not object to the identity argument in the ways suggested in this paragraph. I am not qualified to comment on the system of beliefs characteristic of Yolngu culture. And I cannot pause to refute all of postmodernism. Fortunately we do not need to engage in anthropological speculation or the critique of postmodernism to see that the identity argument fails. The argument proves too much and too little (if I may allow myself to appear to flout the law of non-contradiction). It proves too much because, if the argument were sound, no member of the Yolngu could ever sell a piece of art. Their land is (let us assume) inalienable. If the art is identical to the land, then the art is inalienable as well. Yet the Yolngu sell works of art to outsiders on a regular basis. They would not be so concerned about ownership of the art if they were not interested in 31

Gray (1993), p. 11. Gray develops a related argument in Gray (1994). He is building on the work of anthropologists such as Morphy (1983). Morphy writes that in Yolngu culture, “Rights in land and rights in paintings (and other manifestations of the Ancestral World) are inextricably interwoven . . . By guarding their rights in paintings people are asserting their rights in land” (p. 131). 32 Morphy (1983), p. 130. 86

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selling it. So the identity argument is incompatible with the basic datum that insiders sell artworks to outsiders. One might try to avoid the counter argument I have just given by saying that the Yolngu do not really sell paintings. This claim could be defended by saying that, in Yolngu law, the culture continues to own all paintings. I am willing to accept that in traditional Yolngu law paintings were not private property. I am still skeptical about the claim that the culture owns all works produced by its members. Here again we need to heed the current practices of Yolngu artists. They apparently take money from outsiders and give them paintings. They do this without informing the outsiders that the Yolngu retain the ownership of the paintings. So ownership of the paintings has been transferred. At the same time, the identity argument proves too little. Even if it proved that the culture owns works of art, it does not prove that the Yolngu own styles, motifs, and other artistic elements. There is no suggestion that something as abstract as a style is identical to something as concrete as land. Yet Australian aboriginals want to regulate production of works in aboriginal styles. If they owned styles, they would be in a position to do so. Unfortunately, the identity argument provides them with no grounds for claiming ownership of styles. One could amend the identity argument in an effort to get around the argument of the previous paragraph. One could hold that in a given culture land is held to be identical to artworks and to artistic elements. So, according to a given culture, all of the land belonging to the culture is identical to the artworks its members have produced and to all of the culture’s artistic elements, such as styles. This is an odd position to adopt. Land is something concrete and particular (that is, it is a physical object that exists at a particular time and place). A style is abstract (that is, it has no independent existence or location in space). Given that land and styles have such different ontological statuses, it is hard to see how they could be identical. Still, one possibility still exists for the defender of the identity thesis. Advocates of the identity argument can back up and say that the position of the Yolngu has been mischaracterized. They are not deconstructionists. Rather, they are permissive mereologists. That is, they believe that the world can be divided up in any way people please. The world does not only contain objects such as the desk in front of me. It also contains gerrymandered objects such as the one that is my left shoe, Uluru (Ayers Rock), and the number seven. The object the Yolngu have gerrymandered consists of all their traditional territories, all of the artworks produced by members of their culture, and all of the artistic 87

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elements they have developed. That is fine. I am a permissive mereologist myself and I recognize that this object exists. I just do not see how the existence of this object endows the Yolngu culture with a claim on all of the artistic elements developed by its members. Let us accept for the sake of argument that the gerrymandered object exists. The mere fact that the Yolngu own part of this object does not prove that they also own all of the other parts. One can own only part of an object. There may be an object consisting of a painting and its frame. The painting may nevertheless have one owner and the frame another. Even if we grant that the Yolngu culture owns part of the object (the land) it does not follow that it owns the rest of the object. In particular, they may not own artistic styles. Particularly since there are good reasons to think that styles cannot be owned, we need something besides the identity argument to establish a culture’s claim on artistic elements.

Property and Value to a Culture For the past few sections, most of my comments have been negative. I have shown that the members of a culture frequently are not collective owners of works of art or elements of artworks. Nevertheless, I believe that cultures sometimes are the rightful owners of such property, even when they have not inherited, made, purchased, or been given the property. I believe that the basis of a culture’s claim on cultural property can simply be the great value that some property has for members of a culture. Some writers have concluded from the fact that a culture has not inherited a right to property that it has no claim on it all.33 I want to suggest that this is, at least sometimes, false. I need now to argue that the value some item has for a culture gives the culture a claim on the item. Pretty clearly this position is not founded on a straight utility calculation. In order to see that this is so, imagine a small culture, one of whose most valued artworks is in the possession of a large metropolitan museum. (For the sake of simplicity, let us imagine that the museum acquired the artwork when it was abandoned property, or that it otherwise obtained it without violating any property rights.) A straight utility calculation may not yield the result that the culture ought to have the artwork. We will need to do two calculations. First we will need to multiply the (large) amount of utility gained by culture members 33

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This seems to be the position advocated in, for example, Thompson (2003).

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by the (small) number of members of the culture. Then we need to multiply the (small) amount of utility gained by people in the metropolitan centre who see the artwork by the (large) number of people who gain some utility from the work. The first product could easily be smaller than the second. This leads to the conclusion that, in such a situation, cultural property ought not to be returned to its original cultural context. Yet this does not seem as though it is always the right conclusion. I need to find another way to argue that the value some cultural property has for a culture gives it a claim on the property. Let me begin by noting that the great historical or aesthetic value of certain artifacts places limitations on ownership rights. The laws in many jurisdictions explicitly recognize that the value of artworks can place restrictions on the rights of possessors.34 For example, many jurisdictions have laws that regulate the use of important works of architecture. They may not be demolished or even modified. Other jurisdictions have restrictions on the export of cultural property. The moral intuition underlying these laws is the belief that the value some item has for an entire community gives the community some claim on it. I believe that these laws have captured an important moral truth. The Rockefellers acted wrongly in destroying Diego Rivera’s murals in the RCA Building, despite the fact that John D. Rockefeller Jr had bought and paid for them. Similarly, Sir Winston Churchill’s widow, Lady Clementine, acted wrongly in destroying Graham Sutherland’s portrait of her husband, even though she had inherited the painting. One could attempt to analyze the wrongness of these acts of destruction in terms of violation of artists’ rights. Perhaps artists’ rights were violated, but if so the acts were also wrong because of the harm they caused to those for whom the paintings have great aesthetic value. The intuitions we have about the destruction of the works by Rivera and Sutherland are to be explained by the fact that the value that a masterpiece has for humanity places limitations on the moral rights of owners of these artworks. Minimally, owners ought not to destroy the works. They are obliged to care for valuable works of art in a way that they are not obliged to care for less valuable items. Owners ought to ensure that scholars have full access to works with a high degree of aesthetic value. Some items of cultural property simply have such a high degree of value 34

For an excellent discussion of how the social value of artworks and other items place limits on the rights of private owners, and how this is recognized in law, see Sax (1999). 89

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for everyone that everyone ought to have access to them. Owners of the property may be obliged to ensure that works with unusually high aesthetic value are publicly exhibited. They may even be under an obligation to offer certain exceptional works to some public institution, with the expectation of fair compensation. Just as the public can have a claim on some privately held item of cultural property, so can a culture have a claim on property held by members of another culture. An item can be what is sometimes called the ‘mana’ of a given culture. The item could have this status because of its great aesthetic value. It may be one of the culture’s great aesthetic achievements. Alternatively, some work of art could have great value to some culture because it is connected to important events in the history of the culture. A work could also be valuable to a culture because it has great ceremonial or religious significance within the context of the culture. A few examples will illustrate this point. The medieval manuscript of the Flatejarbók is an example of such an item. This is valuable to all of humanity, but it is particularly valuable to members of Icelandic culture. Icelandic culture cannot claim to have inherited this manuscript. Arne Magnussen bought the manuscript fairly and gave it to the University of Copenhagen. Moreover, there is no suggestion that somehow the Flatejarbók is the collective product of the Icelandic culture. Such collective production cannot be the basis of the culture’s claim on the manuscript. Nevertheless, it seems quite clear that Denmark’s decision to return the Flatejarbók to Iceland was the right one. Given the historical value it has for Icelandic culture, it would be a travesty for the manuscript to be anywhere else but Iceland. Similarly, it would be scandalous if Stonehenge were to be found anywhere but England, though it changed hands as recently as 1915 (for £6,600). It does not matter that the current inhabitants of England did not make Stonehenge. It does not matter that the English invaded and defeated the descendents of the people who built the monument. It does not even matter that ancient Celts are turning over in their graves because it is in the hands of the English. It is part and parcel of who the English are as a culture and they ought to have it. Its sale to an American businessman, and relocation to Druidworld in southern California, would have been scandalously wrong. Similarly, the treasures of Chinese art belong in China. Yet, in 1912 after the last emperor of China abdicated, the Chinese royal family apparently made an effort to sell the entire imperial art collection to the American financier J. P. Morgan. A price of $4 million was mentioned. At the time a journalist noted that, “the idea of one man’s buying the entire national patrimony 90

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of one of the world’s great civilizations seems absurd, not to mention impious.”35 In the end, Morgan did not buy the imperial art collection. Had he done so, the Chinese people would have had a good claim to have the collection returned. It would be wrong for the bulk of a culture’s greatest artistic achievements to be held by another culture. What goes for the civilizations of Europe and Asia goes for the members of any culture, including Australian aboriginal cultures and North American First Nation cultures. These cultures may so greatly value some item of cultural property that it ought to be their collective property. Sometimes the cultural significance of an item will be enhanced by the context in which some item has been appropriated. Consider the totem pole repatriated in 2006 by the Stockholm Museum of Ethnology. This pole was produced by the Xenaaksiala clan, which is now part of the Haisla culture of Vancouver Island. Erected in 1872, it commemorated the clan’s survival of a smallpox outbreak. In 1929, Olof Hansson, a Swede living in British Columbia, bought the pole (apparently from someone not authorized to sell it). It ended up in the Swedish Enthnographic Museum in Stockholm. The pole had an intrinsic value to the Xenaaksiala, and now to the Haisla. It was closely tied to an important event in their history and it has considerable religious significance for the culture. The pole has additional value because it has become a symbol of the domination of Haisla culture by Europeans. The Haisla were treated as an ethnographic curiosity, not a living culture. Having been returned, the pole becomes a symbol of the enfranchisement of the Haisla. Note that the case for the return of the pole does not need to depend on any claims about how it was acquired by the museum. There is some dispute about whether Hansson had authorized permission to remove the pole. Whether he had permission or not is, however, largely irrelevant. The Canadian government permitted the export of the pole because it was considered abandoned property. Perhaps it was, in which case the Haisla cannot claim to have inherited it. Even if, however, the pole had been abandoned, it is now of significance to the Haisla culture. As I have indicated, this value is enhanced by its status as a symbol of the way in which their culture has been oppressed. These reflections lead to what may be called the cultural significance principle. When an item of cultural property has aesthetic, historical, or other value to the members of some culture, then the culture has some claim to the ownership of the property in question. The strength of the 35

Cited in Sax (1999), p. 1. 91

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claim will be proportional to the value the property has for members of the culture. The cultural significance principle is not the only principle governing the disposition of cultural property. In determining who ought to be the owners of cultural property we need to take into account the rights of purchasers, finders, and makers. Considerations about the preservation of cultural property will also be important. As we will see below, a number of factors can complicate the application of the cultural significance principle. If a culture does not have the resources to preserve valuable cultural property, its claim on the property may be, temporarily at least, suspended. Sometimes items have a special significance for more than one culture. These and other matters will be addressed in the next section but one. The suggestion that a culture has a claim on artifacts it finds valuable (usually ones its members have produced) is sometimes attacked by means of a reductio ad absurdum.36 This suggestion is held to lead to the conclusion that every item of cultural property ought to be returned to its original culture or, at any rate, the surviving culture closest to the original. It is held to follow that every Monet ought to be returned to France, every Haida carving to the Queen Charlotte Islands, every shard of Attic pottery to Greece. This conclusion is absurd, as is any position that entails it. Nevertheless, it may appear difficult to explain why a culture has a claim on some items of tangible cultural property but not on others. The proposal advanced here is capable of explaining why a culture has a claim on some artifacts but not others. Sometimes the value of an item for a culture is sufficient to ensure that the cultural significance principle trumps other applicable principles. Sometimes, because the value of some property for a culture is relatively low, a culture does not have a claim on certain items. Consider this example. Sitting on the mantelpiece in my front room is a stone arrowhead that my mother dug from her garden in suburban Vancouver. I do not believe that I am morally obliged to deliver this artifact into the keeping of some local First Nation. I certainly do not think that any local band has inherited a right to the arrowhead. For a start, when my mother dug it up, it was abandoned property in a state of nature. More importantly, my arrowhead is a pretty undistinguished and commonplace specimen. It has no particular significance to any aboriginal culture. If it were a rare and unusually beautiful example, or had considerable ritual significance, the situation might be different. As it is, I do not act wrongly in keeping it. 36

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Greenfield (1989) discusses this argument (pp. 306–7). See also, Dummett (1986).

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Sometimes it will be difficult to apply the cultural significance principle because it is difficult to determine precisely how much value an artwork has for a culture. If the cultural significance principle is to ground a culture’s claim on some item of cultural property, it must have genuine, substantial, and enduring value for a culture. Unfortunately, claims about the value of some item of cultural property can be highly politicized. Members of certain cultures, which wish to see cultural property repatriated, sometimes claim that virtually everything produced by members of the culture is vitally significant, often on the grounds that it is sacred. A member of the Hopi Cultural Protection Office has been quoted as saying that, “Even something like a digging stick could have a ritual use, but we’re not about to say what it is.”37 One is often skeptical about claims of this sort, but proving them false may be difficult. I do not, however, regard this sort of problem as a serious objection against the sort of approach to the disposition of cultural property advocated here. With care and attention, it will be possible to determine how much value something has for a culture. Moreover, the epistemological difficulties here are no greater than we normally confront in making moral judgments.

Cultures and Intellectual Property The cultural significance principle applies to tangible property. It does not apply in any obvious way to intellectual property. Nevertheless, cultures are often said to be the owners of intellectual property. I have already given reasons for thinking that neither a culture nor anyone or anything else could own designs, general ideas for stories, or anything that is less than a complete expression of an artistic idea. This still leaves open the possibility that a culture could own a complete story, a specific musical composition, or something of this sort. And, indeed, one hears the claim that the Ba-Benzélé culture owns certain hindewhu compositions, that the Haida own the poetry of Skaay, and similar claims. So the question becomes how a culture could come to own such items. I have already expressed skepticism about the suggestion that a culture often inherits ownership of property, including intellectual property. Still another argument for the view that cultures own some items of intellectual property remains to be examined.

37

Brown (2003), p. 21. 93

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A plausible line of argument leads to the conclusion that cultures collectively own certain intangible works of art. This line of argument applies most plausibly to traditional stories and songs. That is, it applies to artworks developed over a period of time within a culture. (So, the argument does not work particularly well in the case of Skaay’s poetry.) This line of argument arises from reflection on the appropriation of ecological knowledge from indigenous cultures. In a large number of cases, large pharmaceutical and agribusiness corporations have profited from the appropriation of knowledge from indigenous cultures. In some cases, corporations have exploited indigenous peoples’ knowledge of medicinal plants in the development of new (patented) drugs. Corporations have also benefited from the development of certain crops by indigenous peoples. Crops that are the product of many generations of selective cultivation by indigenous peoples have been patented by corporations, perhaps after a little further genetic tweaking. In most of these cases corporations have reaped large profits and the indigenous cultures have often received no benefits at all. The corporations which have appropriated ecological knowledge from indigenous cultures may not have broken any laws, but they have acted wrongly. In fact, there have been some outrageous rip-offs of indigenous cultures. The indigenous cultures have a moral claim on the intellectual property exploited by corporations. Similarly, one might think, a culture could have a claim on certain stories and songs that they have developed over the years. It might be as wrong that outsider artists profit from songs and stories developed by insiders as it is that multinational corporations benefit from the ecological knowledge of a culture. Although I grant that corporations have acted wrongly by appropriating ecological knowledge from indigenous cultures, I deny that artists act wrongly when they appropriate songs or stories: say, they perform some traditional song or translate a traditional story. The two sorts of appropriation are importantly disanalogous. When a corporation patents a medicine or crop varietal they are profiting at the expense of the culture in which the patented item originated. The insiders have been stripped of the opportunity to patent something. On the other hand, we see a Pareto improvement when artists appropriate a story or song. That is, the outsider artists (and their audiences) benefit, but the insiders are not made worse off. They are still free to make the same use of the songs and stories of their culture as they were before. (Tommie Shelby makes something like this point about the appropriation of African-American

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musical styles.38) Here my argument assumes that artists from within and without a culture are not playing a zero sum game. A work of art does not take up part of a finite and fixed market for works in a given style. Rather, when art in a certain style becomes popular, the audience for the style grows. I will return to this point in the next chapter. In general, appropriation of traditional songs and stories is wrong only when members of a culture are harmed by the act of appropriation. The issue here is relevantly similar to one that arises when artists appropriate material from other artists. Often appropriation from other individuals is not wrong simply because no one is harmed by the act. A few examples will illustrate this point. Sherrie Levine is an artist whose appropriation from other artists has been widely discussed. Levine takes photographs of the photographs of famous photographers. Perhaps most famous is her series, After Walker Evans (1979), photographs of photographs by the great depression era photographer. In another project, Levine displayed framed lithographic reproductions of paintings by Franz Marc in a work entitled, Six Pictures After Franz Marc (1982). Elaine Sturtevant engaged in a similar sort of appropriation. During the 1960s, she painted copies of paintings by Warhol, Lichtenstein, and Johns. For example, she painted Lichtenstein’s Girl with Hair Ribbons (1965) and called it Lichtenstein Girl with Hair Ribbons (1967). It is important that Sturtevant’s paintings are not forgeries. That is, there is no attempt to deceive anyone about the provenance of her works.39 I do not believe that Levine and Sturtevant have done anything wrong in appropriating as they have from other artists. They can be defended against a charge of wrongful appropriation in a variety of ways. The most common line of argument has emphasized the originality of the works of Levine and Sturtevant. Advocates of this sort of argument conclude that the works are so original that they do not infringe on the copyright on some appropriated work. This line of argument may be correct, but it does not address the crucial question of what makes an act of appropriation unobjectionable. We need to ask whether Six Pictures After Franz Marc or Lichtenstein Girl with Hair Ribbons harms the interests of Marc or Lichtenstein. Decisions in copyright law often turn on the question of originality. The courts’ focus on originality is attributable 38 39

Shelby (2005), p. 194. For discussions of these works see Sartwell (1994) and Bowrey (1994).

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to the belief that when artists do something original they are not harming the interests of artists who have previously produced works of art. What is really crucial, however, is whether another artist has been wrongly harmed. An unoriginal work of art may not wrongfully harm anyone and an original one could do wrongful harm. Courts have focused on a criterion (and not always a reliable one) of harm, not on harm itself. An act of appropriation, no matter how original the work to which it gives rise, can be wrong because it harms an artist’s interests. Suppose that I reprint unchanged, or reprint making a few insignificant changes, a book by a living author. I may claim that my book is original. I could defend this claim saying that I have engaged in a postmodernist appropriation and that the aesthetic properties of my volume differ from those of the appropriated book. My book, I might say, is an ironic commentary on the original. Even if all of this is true, I would act wrongly in printing my book. The reason is that I harm the interests of the author whose work I have appropriated. Someone might buy my book (which is virtually typographically indistinguishable from the original) rather than the work I have appropriated. Indeed, if I price my book below that of the original volume, almost certainly I will cut into its sales. So the printing of my book leads to a Pareto inefficiency: the original author is made worse off. In general, the reproduction (or virtual reproduction) of any work of art that exists as a text or a score will harm the artist unless a reasonable period of time has expired. A reasonable period of time extends at least as long as an artist’s lifetime. In most countries copyright extends at least 50 years after the death of an artist. The works of Levine and Sturtevant do not harm the interests of an artist in the way in which my imaginary book does, even though they are in important respects unoriginal. Lichtenstein Girl with Hair Ribbons does not cut into the market for original canvases by Lichtenstein. Six Pictures After Franz Marc certainly does not harm the economic interests of the expressionist painter. After Walker Evans might be thought to be a more difficult case. After all, a good quality photograph of a photograph might harm the interests of the taker of the original photograph. This is particularly likely if the copy were less expensive or more easily accessible than the original photograph. We do not have to worry about this in the case of After Walker Evans. The work was the collection of photographs of photographs. The individual photographs of which the work is composed were not reproduced for sale. Jeff Koons’ sculpture, String of Puppies (1988) provides us with another clear case of appropriation that does not harm the original artist. Koons’ 96

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sculpture owes a great deal to a greeting card photograph (Puppies) by Art Rogers. Rogers produced a rather sentimental photograph of a man and a woman sitting on a bench, each holding four puppies. Koons produced a wooden sculpture of a man and woman sitting on a bench, each holding four puppies.40 Koons appropriated the image in its entirety. The sculpted people resemble the people in the photograph, the puppies look like the puppies, the people and the dogs are all arranged in the same attitudes and so on. A United States court found that Koons had violated Rogers’ legal copyright. From a legal perspective this verdict may have been correct but from a strictly moral point of view it seems wrong since Rogers was not harmed in any way by the act of appropriation. A situation in which String of Puppies exists is a Pareto improvement relative to a situation in which it does not exist: Koons and the audience for his work benefit and Rogers is not made worse off. After the production of Koons’ sculpture, Rogers will not sell any fewer copies of his greeting cards than he would had the sculpture never have been made. On the contrary, more copies of the cards are likely to be sold. String of Puppies may limit Rogers’ capacity to sell a sculpture based on his photograph, but (in all probability) it would never have occurred to him to produce such a sculpture. These reflections on the works of Levine, Sturtevant, and Koons shed some light on the practice of appropriation of traditional songs and stories. Their appropriation from other artists was not wrong because they did not harm the original artists. I take it that this reinforces my contention that artists do no wrong when they appropriate traditional songs and stories without hurting members of the cultures in which these works originated. Of course, if outsiders proceed to copyright traditional material from another culture, the conclusion would be different. The appropriation would not lead to a Pareto improvement and the outsiders would have acted wrongly.

Some Conclusions About Ownership and Appropriation All of these reflections on ownership by cultures have implications for questions about cultural appropriation. Cultures may own works of art. When a culture owns some artwork, its appropriation without permission 40

For a discussion of Koons’ work and pictures of his sculpture and Rogers’ photograph, see Buskirk (1992). 97

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of a competent authority is wrong. The appropriation harms the culture. It is an act of theft. If a work of art owned by a culture was wrongfully appropriated in the past, then there is a strong case for saying that it ought to be returned or restitution acceptable to the culture made. Even so, other considerations must be taken into account in determining the proper disposition of an appropriated work of art. Notice that the acquisition of artworks owned by another culture requires the permission of a competent authority. This may be a national government, clan authorities, or band administrators. Sometimes insiders give outsiders permission to take a work of art but the insiders do not have the authority to do so. I have in mind phenomena such as ‘subsistence digging’. In Latin America, the Middle East, India, south east Asia, and other parts of the world some people support themselves and their families by recovering and selling artifacts created by past members of their cultures. It is not easy to give a blanket assessment of subsistence digging.41 When it leads to the unauthorized appropriation of objects of great significance to a culture, however, it is safe to say that the practice is wrong. As we have seen, a culture’s best claim on a work is often provided by the cultural significance principle. It applies regardless of the circumstances of the work’s appropriation. An artwork could have been illegally traded or fairly bought, spoils of war or a freely given gift. None of this matters so long as an artwork has sufficiently high significance for a culture. The cultural significance principle is not the only principle relevant when considering questions of ownership of artworks. At least four other principles can be identified. All of them need to be taken into account in determining who ought to possess works of art. Perhaps the paramount principle is the preservation principle: possession of artworks ought to be vested in those best able to preserve them. Unless a work of art is preserved, it is of value to no one. Consequently, possession of a work often ought to be entrusted to those who are best able to preserve it. Sometimes the persons best able to ensure the preservation of an artwork are not members of the culture in which it originated. When this is the case, appropriation of the work is, in general, not wrong. Indeed, it may be morally required. Under some circumstances, the preservation principle can be overridden by a competing principle. The case of the Zuni War Gods has already been mentioned. In this case, the preservation principle is 41

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See Hollowell (2006).

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trumped by the proprietary principle, described below. As noted above, the Zuni leave their sculptures exposed to the elements in the full knowledge that they will deteriorate. They own the sculptures in question and they may let them rot, if they so choose. If these sculptures had greater aesthetic or other significance across a range of cultures, we might arrive at a different conclusion. A decision about possession of works of art made on the basis of the preservation principle is not final. As we have seen, some artworks will have a special significance for the members of certain cultures. Especially when this is the case, decisions about possession of an item made on the basis of considerations about preservation are subject to review. Imagine the following situation. An artwork has special significance for the members of some culture, but at a given time they do not have the resources or expertise to preserve it. Subsequently, they may acquire these resources and the requisite expertise. (Those who have appropriated the object may, in some circumstances, be obliged to assist another culture in acquiring the resources and expertise.) The question of who ought to possess the item ought then to be reopened. The next general principle is the access principle. Very often a work of art ought to be in the possession of those who are willing and able to make it accessible to all those persons for whom it has value. This principle complements the preservation principle. There is little point in preserving works of art unless they are made available to an audience for which they have value. This audience will include scholars but also the general public. The access principle can, in different situations, be used either to undermine or to support a culture’s claims on certain works of art. In some cases, it will be important that works be available to a wider audience than simply members of a single culture. In other cases, it will be most important to ensure that members of a culture for whom a work of art has special significance have ready access to it. Sometimes a culture is not ready to take possession of artworks. In 1970 40 artifacts held by the Royal Museum of Central Africa in Belgium were repatriated to the National Museum of Zaire. Within a short time, likely due to official corruption in Zaire, these artifacts found their way onto the international art market. No central African culture benefited from this instance of repatriation and the premature of return of the artifacts to Zaire (now, again, Congo) was wrong. It is worth noting, in the context of a mention of the access principle, that the basements of the museums of the world are full of undisplayed, unstudied, and unappreciated works of art. The Victoria and Albert 99

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Museum, for example, houses the largest collection of Indian art outside of India, approximately 40,000 artifacts. Very few of these items are on display. Undisplayed items might be highly valued in another context. An artwork that languishes in the basement of the British Museum, might be a prized exhibit in Haida Gwaii or the Solomon Islands. Many works of art are more valuable when their integrity is ensured. This observation leads to the integrity principle. According to this principle, steps ought to be taken to ensure that separated parts of cultural property are united. The property united can be either an individual work or a collection whose value is enhanced by its unity. A work of art, for example, has greater aesthetic value if its parts are displayed together. Consider Boy with a Ball, owned by the National Gallery of Washington, and a figure in the Louvre, previously described as an Atlas or a Hercules. In 1970, it was noticed that the two bronzes were stylistically similar. Closer inspection revealed that a projection on the National Gallery’s bronze fit perfectly into a slot on the hand of the Louvre’s sculpture. The two pieces were revealed to be parts of St Christopher Carrying the Christ Child with the Globe of the World (c. 1500/1509), attributed to Bartolomeo Bellano. The National Gallery of Washington’s part of this sculpture is now on permanent loan to the Louvre and the aesthetic value of the reunited sculpture is greater than the value of the separated parts.42 The reunification of this sculpture is a model application of the integrity principle. The integrity principle will often support the conclusion that certain works ought to be left in situ. The aesthetic or historical significance of certain items is frequently greatest when they are seen in their original context. This is particularly true of works of architecture and large sculptures. There is an obvious tension between the integrity principle and the preservation principle. Often, artifacts cannot be left in situ without risking or even ensuring their degradation. It is sometimes suggested that, when artifacts are removed from the places where they are found (perhaps on the basis of the preservation principle), they ought to remain close to where they are found. I see no reason for thinking that this ought to be a principle governing the disposition of artworks. If works of art ought to remain close to where they were originally located, this must be a conclusion reached on the basis of one of the other principles identified here. One of these might be the cultural significance principle. 42

Greenfield (1989), p. 289.

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Finally, I suggest that we need what might be called the proprietary principle. This principle recognizes that sometimes works of art are fairly acquired by production, exchange, gift, or appropriation from a state of nature. This principle can cut both ways in debates about cultural appropriation. Anything that has been appropriated by force, outright theft, deceit, or coercion (and this can be the result of inequities between cultural groups) remains the property of the original owners. When a work of art has been wrongly appropriated from a culture in one of these ways, the culture does not need to appeal to the cultural significance principle. It already has a sufficiently strong claim on the property. At the same time, the proprietary principle can be used to defend certain acts of object appropriation. In particular, the interests of those who find lost or abandoned artworks, or who fairly acquire them from those who do, must be taken into account when questions about ownership of artworks are considered. Indeed, I believe that the interests of the finders must be taken quite seriously. People who make archaeological finds, or who otherwise find long lost or abandoned artworks, have appropriated something from a state of nature and acquire a claim on it. Moreover, they have performed a valuable service that needs to be recognized. Professional archaeologists do not, perhaps, aim at more than advancement of their science, but private individuals who make finds deserve to be compensated. This compensation can take the form of ownership of the find. When the cultural significance principle trumps the proprietary principle, as it can, the compensation will take another form. Quite apart from the compensation owned finders for their service, there is a prudential reason for taking their interests into account. If their interests are disregarded, they will have no incentive to publicize discoveries and less incentive to seek and protect artworks. The cultural significance principle and the other principles just described apply only to tangible works of art. They do not apply to items such as stories, musical compositions, and plays. They certainly do not apply to styles, motifs, designs, or other artistic elements. These sorts of things are part of the artistic commons. The cultural significance principle is designed to provide guidance in situations where there are competing claims about who ought to possess some item of tangible property. Since musical compositions and stories do not have spatial location, the same sort of problem does not arise when we consider such items. This is not to say that a culture may never own intellectual property. A culture may have been given, have purchased, or otherwise have acquired a copyright on some item of intellectual property. It can only 101

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have acquired the property from the artist who produced it (or from someone who acquired it from the artist). When a culture obtains intellectual property in this way, it may restrict the appropriation of this property by members of other cultures. For a culture to own intellectual property in this way it probably needs to be coextensive with, for example, a nation or a clan. Otherwise, there would be no institutions for determining who may grant permission to perform a play, print a novel, or whatever. It follows from these reflections that content appropriation, including style and motif appropriation, is seldom if ever harmful qua act of theft. Since a culture will usually not own intellectual property, such as a copyright on musical compositions or stories, outsiders who retell a culture’s stories or perform its music usually do not harm the culture by taking something that belongs to it. As we have seen, styles and motifs (including patterns) are not owned by a culture (or anyone else). No one who appropriates these items is guilty of theft. Of course, an individual member of a culture may own copyright on a story or musical composition. A member of another culture who appropriates such intellectual property (without permission) has effectively stolen something, but the theft is from an individual. The morality of this act can be evaluated without any reference to cultural appropriation.

The Rescue Argument Before leaving the topic of harm by theft, a final argument remains to be addressed. This is the so-called rescue argument.43 This argument has been advanced as a defense of unauthorized acts of object appropriation. Advocates of this argument maintain that someone who appropriates tangible property can have a proprietary right to it even when its appropriation was not properly sanctioned. If outsiders have preserved a work of art that would have perished but for the act of appropriation, the argument concludes, the outsiders now own it. The rescue argument is frequently heard, particularly in museum circles, but it is hard to state in a way that makes it in the least bit plausible. As usually stated, the argument runs something like the following. Suppose that outsiders appropriate some work of art from some culture. Suppose moreover that this act of appropriation results in the 43

For a discussion of the rescue argument see Warren (1999), pp. 3f.

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preservation of the work and that it would otherwise have perished. (The appropriation of a work may, for example, occur prior to the occurrence of a devastating war. Alternatively, natural forces may have led to the destruction of an artwork had it not been appropriated. Sometimes the rescue argument is used in the case of the Parthenon Marbles. Had they not been removed from the Acropolis, they would have been seriously damaged by the Athenian smog. Those which remained in situ have been badly affected.) Therefore the people who appropriated the work own it. Clearly this argument is invalid. Without additional premises the premises do not entail the conclusion. One can add a premise to the rescue argument that makes it a valid argument for the conclusion that outsiders did not harm the insiders by the act of appropriation. This premise states that the culture from which the property was appropriated lost nothing by the act of appropriation since, by hypothesis, the appropriated work of art would have perished anyway. So they are not harmed by the act of appropriation. Since insiders are not harmed, the outsiders have not acted wrongly. This is still not an argument for the conclusion that the outsiders own the appropriated artwork, but the argument may sooth the consciences of individuals and institutions which possess works appropriated without proper authorization. If anyone’s conscience is assuaged by this argument, it ought not to be. The argument is unsound. In order to begin to see that the rescue argument is unsound, consider some examples of rescued property. Supposes that Felix, your pet cat, escapes from your house. The environment outside your house is one in which cats have no trouble surviving. I find Felix and take care of him for a time. I do not thereby acquire a right to Felix. He is still your cat and I ought to return him to you if you can be identified as his owner. Insofar as case law provides insight into morality, it confirms this conclusion. In Meekins v. Simpson, a case heard by the Supreme Court of North Carolina in 1918, a dog owner successfully sued for the return of a dog that had lived six years with another man.44 Now imagine a somewhat different situation. In this situation my intervention leads to the preservation of your property. Imagine that Polly, your pet parakeet, escapes from your house. In the wild, Polly will soon perish, but I happen to find her and bring her home. I feed and tend Polly and she survives. It is hard to see how the fact that I preserved Polly makes her situation any different than that of Felix. I am obliged to return her to you, the rightful 44

Cited in Mendes da Costa and Balfour (1982), pp. 110f. 103

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owner, if you can be identified. Perhaps you ought to be grateful to me for preserving Polly. Perhaps I even deserve a reward. But she is your parakeet. What holds for Felix and Polly holds for works of art. In fact, the case of wrongly appropriated property is even clearer than the cases of the lost pets. Suppose someone breaks into your house and steals Polly minutes before your house burns to the ground. Polly would have perished in the conflagration, but she is still stolen property. The thief has no right to her. What holds for parakeets holds for paintings. Suppose that a vandal breaks into an art museum and destroys a valuable painting to which the museum has an impeccable claim. Minutes later, an earthquake strikes, destroying the museum and all of its contents. If the rescue argument shows that misappropriators can have a right to property, then we ought to conclude that the vandal just considered has done nothing wrong. After all, the painting would have perished despite the vandalism. Clearly, however, the vandal acted wrongly. The fact that the painting would have been destroyed anyhow does not change this fact. In all those cases where the circumstances surrounding the acquisition of an item of property determine who has a claim on it, considerations about preservation are irrelevant. Perhaps we ought to be pleased that some work of art was preserved because it was looted. It still ought to be returned. These examples are sufficient to show that something has gone wrong in the rescue argument. These examples also provide the clue to the identification of the false premise in the argument. This is the claim insiders are not harmed by an act of appropriation that preserves some work of art (or anything else). The insiders are harmed ( by an act of theft) at the moment that outsiders wrongly appropriate anything. The fact that the insiders would have been, had they not been harmed by the outsiders, harmed by an act of nature or some other cause does not change this fact. Given that it was wrong to harm the insiders, the act of appropriation was wrong. The rescue argument is never a good defense of the morality of acts of object appropriation. There is one sort of context in which it may seem that the rescue argument has some purchase. Imagine that a dog owner is seriously abusing or neglecting the animal. Someone steps in and takes the animal, nurses it back to health, and provides it with care and attention. In this case, the original owner seems to have forfeited a claim to the dog and the rescuer seems to have a good claim on it. (In common law, the original owner may still be recognized as the owner, but here morality 104

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and the law diverge. My intuition is that the abusive dog owner forfeits the dog, even if the law does not entail this conclusion.) A similar sort of situation could arise when works of art are rescued. This is the case where sculptures, for example, are lying around neglected or abused and then are appropriated by outsiders. If insiders were abusing the appropriated works, they have forfeited a claim on them. This is true enough, but here the defense of an act of appropriation (or rescue) is that the works appropriated are abandoned property or property whose owners have forfeited it. In defending the act of appropriation, one does not need to mention that the works would have perished. This is irrelevant to a defense of the act. Even if certain acts of cultural appropriation are not acts of theft, it does not follow that they do not harm insiders. In the next chapter I will turn to a consideration of other ways in which cultural appropriation might wrongfully cause harm. Those who engage in cultural appropriation are a long way from being out of the woods.

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Chapter 4

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Other Forms of Harm Even if acts of cultural appropriation are not wrong qua acts of theft, acts of cultural appropriation could wrongfully harm cultures in a variety of other ways. If the sort of harm investigated in the previous chapter is theft, we can think of the harm addressed in this chapter as analogous to assault or battery. This harm may be to individuals who are members of the culture (without directly harming their culture). Alternatively, cultural appropriation might damage a culture (and thus harm the individuals who participate in the culture). Perhaps the most serious harm that cultural appropriation might do is threaten the very viability of a culture. Chapter 1 noted that broad consensus exists in favor of the view that individuals have an interest in the preservation of their culture. This interest is so important that harm to some individuals’ culture is particularly grievous harm to members of the culture. Some acts of cultural appropriation certainly harm individual members of a culture and are wrong for this reason. I am more skeptical about the claim that cultural appropriation in the arts poses a significant threat to the integrity of any culture. This chapter is divided into seven sections. After this brief introduction, a section addresses an obvious way in which cultural appropriation could hurt insiders. Outsiders could misrepresent another culture in ways that harm individual members of a culture or the culture itself. The third section will consider the possibility that even accurate representations of a culture can be harmful. Next I devote a section to the question of whether cultural appropriation can wrongfully harm the economic interests of insiders by taking away opportunities that the insiders deserve. I then turn to an examination of the possibility that a culture as a whole 106

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is harmed by cultural appropriation. I explore the possibility that it leads to the assimilation of cultures. After this I consider the possibility that appropriation of a culture’s art interferes with the function of vital cultural insignia and, in this way, undermines the culture. Finally, cultural appropriation is considered as an invasion of privacy.

Cultural Appropriation and Harmful Misrepresentation The most obvious way in which cultural appropriation could assault a culture would be by creating or perpetuating harmful misrepresentations of a culture or its members. For example, artworks that involve subject appropriation could present a distorted picture of a culture. Certain sorts of content appropriation could also give a false impression of the culture in which the content originated. These false or distorted impressions of a culture could be harmful in at least a few ways. They could create or perpetuate stereotypes that lead to discrimination against individual members of a culture. Harm of this sort might limit the economic or educational opportunities of members of a culture. More insidiously, members of a culture may come to see themselves and their culture as they appear to outsiders. This could also cause harm to the insiders’ culture. Notice that there could be an asymmetry between the representation of minority cultures and the representation of dominant cultures. Sometimes, when objections have been raised against the representation of minority cultures (such as those of First Nations), writers have defended subject appropriation by saying that artists from minority cultures represent large cultures. This is, of course, a dreadful response. If the representation of other cultures were always wrong, then appeal to the fact that others were engaged in the practice would be no defense. More importantly, the representation of certain cultures by outsiders could be wrong, while the representation of other cultures was unobjectionable. In particular, cultural appropriation by members of a minority culture would pose no threat to a majority culture, while the converse was not true. We must remember that some minority cultures have only a few members: members may be numbered in the hundreds. This leaves them vulnerable in ways that cultures with millions of members are not. In particular, cultures with only a few members can more easily be distorted by misrepresentations. It is true that outsiders can harm insiders by misrepresenting them in certain ways. Pretty clearly Hollywood filmmakers have harmed members 107

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of Native American cultures by employing bigoted stereotypes. It is difficult to say with certainty how much harm has been done to members of Native American cultures by old Westerns and the like. Members of these cultures have been subjected to terrible discrimination, but it is difficult to know how much of this discrimination can be attributed to Westerns and other works of art (novels and so on) that (mis)represented First Nation cultures. Still, it seems reasonable to hypothesize that works of art involving subject appropriation have increased discrimination against First Nation members. Whether this harm was caused by ignorance, malice, or a combination of the two, it was certainly wrong. Notice, however, that the production of works that harmfully distort a culture is not wrong qua act of cultural appropriation. A film or novel that harmfully misrepresents a culture would be as wrong produced by an insider as it is when produced by an outsider. Works that distort a culture do not merely suffer from an ethical flaw. Arguably, they are also aesthetically flawed. Several philosophers have recently argued for what has been called moralism (Noël Carroll) or ethicism (Berys Gaut).1 This is the view that the ethical evaluation of a work of art is relevant to its evaluation as an aesthetic object. That is, a work that embodies an immoral perspective is ipso facto aesthetically flawed. The paradigm case of such a work is Leni Riefenstahl’s Triumph of the Will (1935). A tour de force of cinema, at the same time it is aesthetically flawed because it is a Nazi propaganda film. That is, the moral flaws of the work lessen its aesthetic value. Works of art that harmfully distort a culture, I suggest, similarly suffer from an aesthetic flaw that is the product of their moral shortcomings. It does not follow from this that all works of art that create or perpetuate harmful stereotypes of a culture are aesthetically worthless. Being ethically unobjectionable is not a necessary condition for a work’s being aesthetically valuable. Ethical flaws can be more than counterbalanced by other factors. Consider, for example, Shakespeare’s representations of cultures other than his own in plays such as The Merchant of Venice (c. 1596) and Othello (c. 1603). There is no doubt that Shakespeare stereotyped Jews and Moors. The bigotry embodied in these works is a moral and an aesthetic flaw. Nevertheless, the works are still on balance aesthetic masterpieces.

1

Carroll (1996); Gaut (1998). Lopes (2005) also defends the view that ethical properties can affect the evaluation of artworks.

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Although some acts of subject appropriation are wrong (and result in aesthetically flawed works) at least a couple of arguments can be given for the conclusion that not all representations of other cultures are wrong. The first of these begins from the premise that outsiders could do more harm by neglecting to engage in subject appropriation than they do by engaging in such appropriation. A failure to represent a culture can be just as harmful as certain representations. Consider, for example, Wallace Stegner’s novel Angle of Repose (1971), a book concerned with irrigation projects in nineteenth-century Colorado. This novel has no native characters and does not contain any mention of Indian water rights. Native people are completely left out of this book, even though it is about a subject that deeply concerns their present-day interests and the historical violation of their rights. (Despite this, Angle of Repose won the Pulitzer Prize for Fiction in 1972.) This omission of American natives harms them much more than an accurate representation would. More generally, when outsiders refrain from representing insiders and their cultures, the result can be a misrepresentation of reality. Insiders can be harmed by omission as much as by inclusion. Arguably, in some contexts, outsiders are obliged to represent other cultures.2 The second argument against the wrongness of all representation of other cultures begins from the observation that, even if some artistic representations of other cultures are distortions, it does not follow that all are. If some representations of other cultures do not distort them, we do not have a general case against all artistic representation of other cultures. And, as we have seen, there is little evidence that all artistic representations of other cultures must be misrepresentations. As argued in Chapter 2, outsiders do not labor under an aesthetic handicap that condemns them to produce harmful misrepresentations of the culture of insiders. On the contrary, outsiders can bring a fresh perspective on a culture and can provide valuable insights. As we saw, Edward Said makes this point about Conrad (Heart of Darkness, 1902) as well as Kipling (Kim, 1901). Even though both of these great writers were limited by their cultural perspectives, whole new ways of looking at countries and cultures (in Conrad’s case, the Belgian-occupied Congo and in Kipling’s case, the native cultures of India) originated with their work.

2

I owe the argument in this paragraph to conversations with Susan Haley, a writer who has successfully engaged in subject appropriation in novels such as The Complaints Department (1999) and The Murder of Medicine Bear (2002). 109

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An insightful representation of another culture can be beneficial rather than harmful, but this is not the only sort of benefit that we can expect from the representation of other cultures. Said identifies another benefit of subject appropriation that ought not to be overlooked. Said’s view is that great literature can have the salutary effect of spawning other works both in imitation and in rebuttal. He sees the world of literature as a kind of global stage upon which works of art strive with one another in a huge free market. The novels of outsiders such as Conrad and Kipling opened up a literary field which is being cultivated by Indian writers to this day. In this way the works of Conrad and Kipling were the source of more great literature, in part because of their flaws. This is especially and obviously true of Kim. Probably all Indian writers detest this book’s imperialist assumptions. Kipling could not picture India except as part of the British Empire. At the same time Kim is beloved by most Indians and, in many ways, Kipling’s work is to be found at the heart of the explosion of Indian literature in English which is going on at the present time. The God of Small Things (1997) by Arundhati Roy, winner of the 2001 Booker prize, owes a great debt, for example, to The Jungle Book (1894). Of course, it is undeniable that colonialism in the past, and now globalization, have resulted in the world-wide erosion and even extinction of cultures. Said’s point is that the voices of the best artists set up a counter-current to these forces. They do not reinforce the pressure on cultures, as those suspicious of cultural appropriation believe. Subject appropriation is not the only sort of appropriation that might be thought to misrepresent cultures in a harmful way. Content appropriation can also do so in certain contexts. If outsiders appropriate a culture’s styles or artistic forms in an ineffective manner, audiences may form a poor estimate of the culture in which the style originated. Australian aboriginal groups have expressed the concern that some works, although not produced by aboriginal people, are sold through tourist shops as typical of aboriginal art. These could “give a false image of indigenous manufacture or some indigenous association.”3 Outsiders might get the impression that aboriginal arts are kitsch and this can reflect badly on the culture. A similar sort of concern has been raised about appropriation of musical styles from Africa-American culture. There is a danger that, “The uniformed or naïve will mistake the fake stuff for the real thing, coming away with a distorted view of the value of the

3

Janke (1998), p. 173.

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original.”4 Or consider blackface minstrelsy, which was enormously popular in nineteenth-century America. Undoubtedly this sort of performance of African-American music perpetuated harmful stereotypes: AfricanAmericans were portrayed as lazy, buffoonish, and so on. (This is a complex form of appropriation since the performers impersonated African-Americans as well as appropriating songs and styles of their culture. Arguably, it was the impersonation of African-Americans that was harmful, not the appropriation of the music, which was often admired by mainstream Americans as an expression of African-American culture.) Even if some content appropriation can be harmful, it is far from obvious that all of it is. For a start, we need to recall the distinction between innovative and non-innovative content appropriation. Artists who engage in innovative content appropriation are likely to produce works that are seen as their own productions and not as something that reflects (badly or otherwise) on the culture from which the content is appropriated. This point can be illustrated by examples already employed in this essay. It is difficult to see that the innovative appropriation of motifs from African-American music by Ravel and Debussy in any way reflected poorly on the culture from which they borrowed. A similar point can be made about Picasso’s appropriation from West African cultures. Even artists who engage in non-innovative content appropriation can do so in ways that do not harm the culture from which they appropriate. After all, they may produce aesthetically valuable works of art that reflect well on the originating culture. According to Baraka (no fan, as we have seen, of cultural appropriation), Bix Beiderbecke’s appropriation of jazz “served to place the Negro’s culture and Negro society in a position of intelligent regard it had never enjoyed before.”5 If Baraka is right, then some non-innovative appropriation does not harm the cultures of insiders in the way that the argument under consideration suggests. I take it that Beiderbecke’s appropriation of jazz was non-innovative even though Baraka regards it as white jazz. Many people would have a great deal of difficulty distinguishing Beiderbecke’s jazz performances from those of his African-American contemporaries. Still, the fact remains that some acts of content appropriation could reflect badly on a culture. It is important to note, however, that the 4

Shelby (2005), p. 191. Shelby does not endorse the view described in the quoted passage. 5 Jones [Amiri Baraka] (1963), p. 151. 111

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production of works that reflect badly on a culture are not objectionable qua act of cultural appropriation. Suppose insiders produce tourist tat that leads outsiders to form a poor opinion of the insiders’ culture. (I am not certain that cheap souvenirs will lead many outsiders to form a poor opinion of a culture. They are only being produced because tourists want to acquire them and tourists are unlikely to buy things they regard as rubbish.) The insiders’ production of tourist tat is just as objectionable as the production of such tat by outsiders. Similarly, an incompetent African-American blues musician would give as bad an impression of his culture as any white musician could. In fact, incompetent AfricanAmerican musicians could give a worse impression. Their music making is much more likely to be taken as a representative expression of their culture. So the production of poor works in the style of a given culture is not objectionable qua act of cultural appropriation. All of this said, one might still argue that the incompetent artist who appropriates content harms a culture and, consequently, acts wrongly. One might go further and argue that, since one cannot know in advance whether an artist will successfully appropriate a style or some other element of content from a culture, no one ought to do so. Here the argument is parallel to one in favor of gun control. Most people who might own a fully automatic assault rifle would use it responsibly. Unfortunately, we cannot tell in advance who the responsible users are. Add to this the fact that those who use such weapons irresponsibly can cause a huge amount of harm. We are then likely to conclude that no one ought to have such weapons. Similarly, one might argue that we cannot know, in advance, whether an artist’s appropriation of artistic content will harm a culture. Perhaps, therefore, we ought to conclude that no one ought to appropriate content from other cultures. As I have just represented the problem we are faced with a choice between unrestricted freedom of artistic expression and the security of persons belonging to certain cultures. Empirical data are required before we could know which option to choose. We need to know how much harm is done to a culture or its members by the clumsy appropriation of its styles or other artistic content. Some authorities believe that the harm done by such appropriation can be significant. However, I am deeply skeptical about the claim that artists will do much harm to the cultures from which they borrow. If they are so incompetent, it is unlikely that they will have much of an audience. If they are incompetent, and still have a large audience, likely the audience members do not think very poorly of the culture from which the artists appropriate. At the same 112

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time, I think we have to balance the benefits of cultural appropriation against any harm that it might do. As the examples of Beiderbecke and others illustrate, we would certainly lose works of high aesthetic value if no one appropriates content from other cultures. This weighs a lot with me since I am not convinced that significant harm is done to cultures when artists appropriate from them. So I conclude, once again, that artists do not act wrongly in appropriating styles and motifs from other cultures. Another consideration leads to the same conclusion. The production of an artwork is an act of self-realization and vital self-expression. Many artists feel compelled to produce the works they do. One might wonder about why certain artists feel compelled to represent other cultures or to borrow certain artistic elements. The fact remains that some artists do feel compelled to do so. When this is the case, I am reluctant to say that artists who engage in cultural appropriation act wrongly. We should always be reluctant to say that a person acts wrongly who is engaged in an act of self-realization. This said, some acts of self-realization may have consequences for others. It is possible that cultural appropriation could have catastrophic consequences for a culture. If subject or content appropriation would undermine a culture (whether their own or someone else’s), then artists ought not to engage in it. Again, however, I think that it is unlikely that a few incompetent artists are going to bring down a culture.

Harm and Accurate Representation We have just considered the possibility that misrepresentation of a culture can be harmful and wrong. One might argue that, even when outsiders accurately represent a culture other than their own, they can do so in ways that are harmful and wrong. Consider, for example, a novel that does not misrepresent a culture (and, consequently, is not wrong on this ground) but still puts the culture in a bad light. Some cultures are plagued by serious problems. Colonization disrupts cultures and causes a series of problems such as high rates of violence and substance abuse. A novel may accurately represent this reality. One might think that when outsiders (accurately) represent the culture, its members may be stigmatized. Discrimination against members of the culture may be reinforced and perpetuated. In this way the insiders could be harmed and, one might conclude, even the accurate representation of insiders by outsiders 113

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is wrong. It might seem that it is more often wrong to represent other cultures than I have suggested. It might seem that the insiders have a right not to have their dirty laundry exposed to the world. This is really an argument against the representation of a culture by anyone and not an argument against subject appropriation. Representations of a culture by insiders could air dirty laundry just as surely as any representation by an outsider. Presumably these representations could be just as harmful as any laundry-airing representations by outsiders. They may be more harmful, because they are seen as more credible. Consider, for example, the novel Once Were Warriors (1990) by the Maori writer Alan Duff and the film of the same name (1994) directed by the Maori filmmaker Lee Tamahori. These works exposed widespread violence against women in Maori culture. Furthermore, the argument is not a general one against all subject appropriation. Even if successful, it would only show that some instances of subject appropriation, those that represent a culture in a bad light, were wrong. These responses do not, however, reveal the full problem with the argument at hand. It is premised on the claim that it is wrong, in certain instances, to reveal the truth and this is something about which I am skeptical. There may be a high rate of domestic violence or HIV infection in a given culture. The correct response is not to ignore this fact. Any accurate representation of the social problems faced by a culture will reveal the sources of these difficulties. It will show when they have been externally caused and when they are not the responsibility of insiders. It will show that the appropriate response to these difficulties is understanding, compassion, and assistance. The correct response is not discrimination. If problems are ignored, nothing can be done about them. It is better that artists have the opportunity to present social difficulties in a responsible and compassionate manner. As I have already indicated, the perspectives of outsiders may be insightful and helpful.

Cultural Appropriation and Economic Opportunity I have maintained that subject matters are not something that anyone or any culture can own. It follows that subject appropriation cannot be a form of theft and this form of appropriation was not discussed in the previous chapter. Nevertheless, there is a sense in which subject appropriation could take something from insiders. Subject appropriation could deprive insiders of an audience and, consequently, harm their economic 114

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interests. This could do more than harm a few individuals within a culture. Potentially, it could have a dramatic impact on the culture as a whole. The sale of artworks could be an important part of a culture’s economic base. If the base is undermined, the culture could be threatened. As well, artists can be responsible for maintaining an important part of a culture’s heritage. If they are unable to practice their craft, a culture could be irreparably damaged. The sort of argument I have just described is often made in discussions of outsiders who write or make films about First Nation cultures. The suggestion is that insiders and outsiders will read books or watch films about First Nations by outsiders and the insiders will be left without an audience they rightfully deserve. That is, the potential audience for the material has been appropriated. Consider again what Lenore Keeshig-Tobias has to say about Where the Spirit Lives. Keeshig-Tobias maintains that this film takes from natives the opportunity to tell the story of residential schools. “Even if we had access to financial backers,” she writes, “they would say: ‘Residential schools? It’s been done.’ ”6 Some writers have suggested that audiences are prejudiced against artists from certain indigenous cultures. Rosemary J. Coombe, for example, suggests that the reading public has “no interest in hearing Native peoples speak on their own behalf.”7 The first problem with this argument is that it is not clear that any public audience rightfully belongs to anyone. No one has a right to an audience. No writers have a right to have their books read. No painters have a right to have their paintings bought or displayed. It follows that no one has a right to an audience for a work of art on a particular subject matter. This is as true of groups of artists who belong to a culture as it is of individuals. Artists within, say, Maori culture do not own, or otherwise have a right to, an audience for artistic representations of Maori culture. A public audience is something that an artist earns by producing works that deserve attention. I have another reason for doubting outsiders appropriate the audience of insiders by engaging in subject appropriation. Artists might be thought to be competing for the same market. If outsiders write about a culture, they may be thought to have taken from insiders the opportunity to publish on their own culture. Or if outsiders paint in the style of a

6 7

Keeshig-Tobias (1997), p. 72. Coombe (1998), p. 240. 115

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culture, they may take from insiders a share of the market for works in that style. In fact, artists are not playing a zero sum game. The audience for novels or films about, say, First Nations is no more fixed than is the audience for murder mysteries or stories about wizards. If someone makes murder mysteries or wizard stories popular, the market for such books increases. Opportunities for other writers expand. They do not contract. There is a potentially limitless appetite for books about any given culture (or works in a particular style) and it is likely that outsider books open up new markets for insider books. Certainly, the appropriation of content provides us with a reason to think that this is so. Consider, for example, Paul Simon’s appropriation of the music of South Africa’s townships. This led to an explosion of interest in South African music and huge opportunities for musicians from South Africa. Think, for example, of the huge success enjoyed by the Zulu choir, Ladysmith Black Mambazo. Another consideration reinforces this view. As already noted, collectors of Australian aboriginalstyle art strongly prefer to buy works that have been produced by aboriginal artists. These are regarded as more authentic expressions of the style. Similarly, all things being equal, we might expect that the artworld public will prefer insiders’ representations of their culture over those produced by outsiders. As evidence of this claim, consider the following. While writing this chapter, I checked the respective sales rankings of W. P. Kinsella and Sherman Alexie, a Spokane Indian, on amazon.com. A reprint of Kinsella’s early collection of stories about the Hobbema reserve, Dance Me Outside, barely cracked the top million. By comparison, Alexie’s breakout book, The Lone Ranger and Tonto Fist Fight in Heaven (1993), ranked in the top 5,600 or so.) The available evidence suggests that subject appropriation does not restrict the opportunities of insiders any more than Paul Simon’s appropriation of content has. On the contrary, writing about native people has probably helped them in a real practical sense to have a voice, in the sense that literary attention has helped them to become published themselves. The fashionableness of native cultures actually draws attention to their problems and permits the voices of natives themselves to be heard. It seems obvious that the members of some culture are more likely to find an audience if the public is already aware of their concerns than if they do not even appear on the literary landscape. In Canada, nonaboriginal authors such as Rudi Wiebe and James Houston have been writing about natives of the Canadian west and north for some time. I suggest that the work of these writers is at least partly responsible for the 116

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strong interest that has been awakened in the work of native authors such as Thomas King, Thomson Highway, and Robert Alexie. This pattern can be observed in arts other than literature. Consider the movie, The White Dawn (1974). The White Dawn was undoubtedly, in many ways, the progenitor of Atanarjuat (The Fast Runner) (2001), directed by Zacharias Kunuk and winner of the Camera d’Or at Cannes and an Academy Award for best foreign-language film. Unlike its predecessor, Atanarjuat had not only an Inuit cast, but an Inuit director as well. The White Dawn certainly did not steal the audience of Atanarjuat, which won a world-wide audience. Saying that The White Dawn did not harm Atanarjuat may minimize its importance. When The White Dawn was first shown in Arctic communities, the audience of native people found this movie completely gripping because they realized that it was about themselves. Previously they had only seen southerners represented in cinema and this movie contributed to the recognition that the Inuit could be the subject of successful filmmaking.8 This is not to say that members of minority cultures have experienced no difficulties in obtaining an audience. There is anecdotal evidence that publishers have been reluctant to print works by members of First Nations. Keeshig-Tobias reports that, “publishers have returned manuscripts by natives with ‘too Indian’ or ‘not Indian enough’ scrawled across them.” Barbara Goddard writes that some publishers have used “not marketable” as a “euphemism for concern about the race of the characters.”9 No doubt there has been discrimination against indigenous artists. Discrimination against indigenous artists by publishers or the general public is deplorable, but it is irrelevant to the question of whether artists may represent other cultures. The problem is not with artists who represent other cultures. They are not the ones who harm insiders by denying them opportunities. This said, it is not obvious how much discrimination indigenous artists continue to face. In the article just quoted, Goddard notes that Dry Lips Oughta Move to Kapuskasing (1989), by the Cree playwright Thomson Highway, was, at the time of her writing, playing in Toronto to “packed houses and critical acclaim.” It was one of three plays by Highway produced in Toronto that year. Facts such as this one seems to undermine 8

I owe this example to a private communication from the novelist Susan Haley. Haley was resident in the Northwest Territories at the time and present at public showings of The White Dawn. 9 Goddard (1990), p. 185. 117

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Goddard’s argument to some extent. Recall also the success of Sherman Alexie and Louise Erdrich (whose books include Love Medicine, 1984, and Tales of Burning Love, 1997) and other indigenous writers. We should also recall the huge popularity of indigenous painters, sculptors, and print makers. It is implausible that non-native people would be happy to have natives speak through the visual arts but not through the literary arts. In any case, even if some insiders face discrimination, it does not follow that artists act wrongly in representing other cultures. It is clear from these reflections that subject appropriation does not wrongfully take an audience from insiders. The audience was never exclusively theirs and the best evidence suggests that outsiders who appropriate subject matters only increase the opportunities for insiders. Insiders and their culture are not harmed.

Cultural Appropriation and Assimilation In the previous two sections I considered the possibility that outsiders could, by engaging in cultural appropriation, put some culture in an unfavorable light and the further possibility that this could harm a culture. Perhaps the mechanism by which cultures are harmed by cultural appropriation was not properly captured in the argument of those sections. Several writers have expressed the fear that certain small, often indigenous, cultures will be overwhelmed if outsiders engage in cultural appropriation. A culture could be overwhelmed by subject appropriation if insiders begin to see themselves as others see them. Or it could be subverted by content appropriation if insiders begin to practice their arts in the manner of outsiders. In either case, the insiders are threatened by assimilation. Thomas Hurka is among those who have argued that a culture could be distorted if outsiders engage in subject appropriation. He is particularly concerned about the danger that small, indigenous cultures will be overwhelmed by the voices of outsiders. He considers the case of a white author who writes about a First Nation culture and, through ignorance, distorts the culture’s symbols. “If the white’s novel is read by Natives, they too may understand the symbols inauthentically. The Native artist then can’t speak even to his or her own people.”10 Native artists will have lost some of their cultural identity. They and, perhaps, 10

Hurka (1994), pp. 184–5.

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some of their audience will be partially assimilated into the majority culture. This strikes Hurka (and me) as objectionable harm. I will call this argument the assimilation argument. Note that the assimilation argument is asymmetrical. Members of minority cultures will not similarly hurt majority cultures by acts of cultural appropriation since members of majority cultures have enough access to accurate representations of their cultures. So, according to the assimilation argument, while members of majority cultures ought not to represent minority cultures, members of minority cultures may represent a majority culture. The assimilation argument can be extended to certain instances of content appropriation. Suppose that outsiders appropriate images, styles, and motifs that are characteristic of a culture. They may not use these artistic elements in precisely the way that the insiders do. Now suppose that insiders are exposed to the artworks produced by outsiders. The insiders may begin to imitate the ways in which outsiders use the artistic elements originally developed in their culture. The result may be that the insiders’ culture loses some of its distinction from the culture of the outsiders. This sort of concern has been raised about the appropriation of motifs developed by Australian aboriginal cultures. Galarruway Yunupingu, an aboriginal leader, has stated that those who appropriated aboriginal motifs “are using the same old tactics of assimilation, except this time they are trying to assimilate our culture into their world because it is fashionable in their eyes and will make money.”11 A similar concern has been raised in connection with the appropriation of musical styles that originated in African-American culture. Gracyk writes that, once music has been appropriated from African-Americans, there is a danger it “will no longer embody the ideas and values of the black community.”12 If African-American music making is subsequently influenced by culturally mainstream musicians, some of the distinctiveness of African-American culture will be lost. The assimilation argument must be taken seriously since it correctly identifies the single most important threat to minority cultures: destruction by assimilation. While assimilation is the greatest danger facing minority cultures, the assimilation argument under consideration is not a very persuasive argument against cultural appropriation. It depends on an unsupported empirical claim: that exposure to novels (or other works 11 12

Coleman (2005), p. 2. Gracyk (2001), p. 110. 119

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of art) will be sufficient to mislead insiders about their own culture. This is certainly possible, but insiders have many other sources of information about their culture. The insiders can check the outsiders’ representations of their culture against their own experience and the inherited knowledge of other members of the culture. If insiders are worried about being harmed by artworks produced by outsiders they can simply decline to be part of the audience for these works. I cannot absolutely refute the claim that artworks produced by outsiders will distort and overwhelm some minority culture. The probability that this will happen is difficult to calculate. I think that it is small and that the threat of assimilation does not come from artists who engage in cultural appropriation, but I could be wrong. Even if I am wrong about the threat posed by cultural appropriation, it can still be defended. The mere fact that outsiders might, in representing a minority culture, contribute to its assimilation is not enough to establish that subject appropriation is wrong. The fact that it is possible that insiders can check any representations of their culture (or use of artistic elements) by outsiders is sufficient to undermine the assimilation argument. Insiders bear the primary responsibility for the perpetuation of their culture. They can be expected to take reasonable precautions to ensure that their cultures are protected. Insiders are able (and probably easily able) to avoid being harmed by any artworks produced by outsiders. Consequently, outsiders cannot be held responsible for any assimilation that results from their cultural appropriation. Here cultural appropriation is analogous to playing one’s stereo at a reasonable volume. The neighbors might be disturbed, but only if they do not take care to close their windows. (I assume that there is no good reason, in this case, to keep the windows open. For example, it is not a hot or humid evening.) The analogy is not a perfect one. Indigenous cultures are at risk because outsiders have (if I may continue with the same conceit) squatted next door to the insiders, pulled open the insiders’ windows and turned on their stereos. Still, the annoyance of the music next door is easily avoided. The artists who turned on the stereos are not the real culprits. The real problem is that the outsiders squatted next door in large numbers.

Art, Insignia, and Cultural Identity Elizabeth Burns Coleman has recently presented a novel and interesting argument for the conclusion that appropriation from Australian aboriginal 120

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cultures (and perhaps others as well) can lead to the destruction of a culture. Since the destruction of a culture is obviously wrong, Coleman provides us with an argument against cultural appropriation. Crucial to Coleman’s argument is the concept of an insigne. If a culture’s insignia are appropriated, she argues, a culture can cease to function. Since, in some cultures, artworks are also insignia, Coleman presents an argument against the appropriation of artistic content. An insigne is something like a coat of arms, a seal of office, a university diploma, or a police officer’s badge. Insignia are a mark of someone’s institutional role and a sign of authority. Institutional rules exist for the use and production of insignia. Only certain people may bear insignia, authorize their use, and produce them. For example, only the senate and chancellor of my university may authorize someone to display the diploma appropriate to the degree a person has been awarded. The crucial step in Coleman’s argument is the claim that Australian aboriginal artworks function as insignia. (The art of other cultures may similarly be regarded as insignia but she does not address this point.) Coleman can then go on to make a case against the appropriation of aboriginal art. Coleman identifies a number of ways in which aboriginal art is like insignia. Certain designs and patterns are regarded as the property of clans or cultures. These designs, like heraldic devices, are passed from one generation to the next. Aboriginal designs perform some of the same institutional functions of insignia. For example, a design (painted on a body) can indicate that a person has been initiated in certain rites. On a painting, a design can indicate that it is the property of a given clan. Perhaps the most important similarity is that aboriginal cultures have institutions and practices which govern the use and production of paintings, just as the use of insignia is controlled. In aboriginal cultures paintings often illustrate traditional stories. Artists within a culture have to be authorized before they can produce a painting corresponding to the story. Artists may have to go through a process of initiation before they are permitted to use certain designs or patterns. Clearly, the use of insignia without proper authorization is often wrong. Such use can constitute fraud or forgery. It can also be a kind of offensive desecration if the insignia have a ritual or religious significance. Suppose, for example, a non-believer dons the robes and carries the attributes of a bishop. Believers may well regard this as a blasphemous desecration of the bishop’s insignia. The use of Australian aboriginal insignia could be similarly offensive. Concern about the inappropriate use of insignia is not limited to Australia. The issue is an important one in North America. 121

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The flag of New Mexico is at the centre of the most famous dispute over the use of an aboriginal insigne. The sun symbol of the Zia Pueblo features prominently on the flag. It is also used in trademarks of many New Mexican businesses. Yet the Zia Pueblo regards it as a sacred symbol whose use they should be able to control. This is not an isolated case. Hundreds of American trademarks appropriate the names and symbols of indigenous peoples.13 Clearly the fraudulent and offensive use of insignia is an important issue. The symbols of a people or a culture deserve at least as much respect and protection as the trademarks of a corporation. How a culture’s insignia are to be protected is far from clear. Fortunately, I do not have to address this issue here. As will emerge, artists who engage in cultural appropriation (even those who appropriate content from Australian aboriginal cultures) typically do not appropriate a culture’s insignia. Coleman is not primarily concerned with the fraudulent or offensive use of insignia. She is after bigger game and maintains that the appropriation of aboriginal art can harm insiders by leading to the destruction of aboriginal cultures. Since this is wrong, she concludes that the appropriation is wrong. Coleman’s argument is detailed and sophisticated but, stripped to its essentials, runs as follows. The successful functioning of a culture depends on insignia being used in authorized and appropriate ways. She gives an example to illustrate this point. Suppose that counterfeit police badges are widespread. Now imagine that someone displays what is apparently a police badge and asks that you come along to the station to answer a few questions. If you are uncertain about whether the badge is authentic, you will not know how to respond. If you knew that it was authentic, you would probably cooperate, but if you believed that the badge was likely to be counterfeit, you may well fear that you are being kidnapped and make a run for it. Repeated often enough, this sort of scenario could lead to chaos. Similar disruption of a culture could result from the display of bogus credentials in the offices of persons purporting to be physicians or lawyers. Coleman believes that the appropriation of aboriginal art can cause even greater disruption to a culture. If, for example, Yolngu artworks function as insignia unauthorised reproduction of art threatens the system and ways that underpin the stability and continuance of Yolngu society. More generally, 13

For a discussion of these issues in the American context, see Lury (1999).

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we can say that without effective insignia, Aboriginal traditions will be damaged; Aboriginal people would not be able to continue to perform acts such as marriages, burial rites, initiations and other important customs that define their way of life.14

If the appropriation of art had these consequences for aboriginal cultures, clearly no one ought to appropriate their art. I doubt, however, that cultural appropriation would ever have the sort of consequences that Coleman fears. I also think that artists can engage in a great deal of cultural appropriation (specifically, content appropriation) without violating the rights a culture has to restrict the use of its insignia. Coleman herself gives the reason why the appropriation of aboriginal insignia will not seriously disrupt their cultures. She writes that “as small, clan-based organisations . . . Yolngu people are highly likely to recognise fraud. If this is true of other Aboriginal societies, then the appropriation of insignia by outsiders does not appear to pose a significant threat to the continuance of Aboriginal societies.”15 This is exactly right. If some Sydneysiders start displaying (without permission) insignia of an aboriginal culture, they have, quite possibly, done something offensive or fraudulent. We do not need to worry, however, that members of the culture will be so confused that they will be unable to perform marriages or other rites essential to the culture. As Coleman says, fraud will be easily recognized. Even if imposters were not easily detected, aboriginal cultures are much more robust than Coleman apparently thinks. My culture does not collapse because a few individuals display forged legal or medical credentials. There is no reason to think that aboriginal cultures are any less able to survive misuse of their insignia. Having conceded that small cultures will not be internally disrupted by appropriation of their art, Coleman does say that if insiders’ insignia are usurped, “such appropriation would make it impossible for the group to act publicly as a group.”16 This too is an unfounded worry. Again, small cultures are more fitted to survival than Coleman recognizes. A small culture will be able to make known to the world who is authorized to use its insignia. Its members will quickly identify anyone who is unauthorized. Moreover, any appropriation by artists is unlikely to interfere with a culture’s capacity to represent itself to others. The appropriated 14 15 16

Coleman (2005), p. 117. Coleman (2005), p. 126. Coleman (2005), p. 126. 123

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insignia are not likely to be used in a context where it appears to indicate that someone is a representative of a culture. Forged diplomatic credentials might interfere with a culture’s capacity to act as a group. In contrast, a painting in a gallery will not detract from the efficacy of insignia used when a culture acts as a group in its own cultural context. So far, in responding to Coleman, I have assumed that some appropriation by artists violates the rights insiders have to their insignia. It is important to note that a great deal of style and motif appropriation will not be objectionable in this way. Artistic elements are not insignia. A certain sort of cross-hatching may be characteristic of a clan’s paintings but this does not make it an insigne. As I have already noted, no group owns a right to an artistic element as basic as dot painting or a crosshatch pattern. Nothing in Coleman’s argument shows that outsider artists act wrongly in appropriating such artistic elements. I am also skeptical about the general claim that aboriginal works of art are insignia. The fact that a painting illustrates some aboriginal story does not prove that it is an insigne. Two tokens of the same insigne type will look very much alike. Two police badges will be indistinguishable but for the name or number of the bearer. A certain amount of variation is permitted in other insignia. An insigne is a token of a coat of arms type so long as it conforms to the type’s blazon. Still, typically two tokens of the same coat of arms will closely resemble each other. They could not function as insignia if they did not. Two paintings that illustrate a story told in some culture, however, are often quite different. Coleman reproduces two paintings with the title Wagilag Creation Story, one by Joe Djembangu and the other by Dawidi (an artist who used only one name). They have certain features in common, including four human figures on a circular ground, but the paintings do not much resemble each other. They are as formally and stylistically distinct as a Crucifixion painted by Filippino Lippi and one by El Greco. This variety is part of what gives Australian aboriginal painting so much of its aesthetic value. We would not appreciate aboriginal paintings as aesthetic objects if they were all very much alike. The depictions of the Wagilag creation story are no more insignia than are depictions of the Crucifixion. So justifiable restrictions on the use of insignia do not apply to appropriation of the story by outsiders. Reflection on insignia fails to show that artists are not free to appropriate plots and subject matters that are characteristic of a given culture. It is true that, within a culture, only certain people are authorized to depict certain stories. This is not enough to show that certain paintings 124

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function as insignia. Nor does it follow from this that outsiders ought not to depict these stories. A culture may wish that some story not be generally known. If so, then its members ought not to tell the story to anyone without requiring that it not be made public. Anyone with whom the story is shared then has an obligation of confidence. As soon as authorized members of a culture make the story public, the situation changes. The story enters the artistic commons and anyone may illustrate it. In fact, many stories are entering the artistic commons. For example, many Australian aboriginal artists no longer keep their stories secret. They produce works of art for sale to the public. Once stories have become public not even insiders are morally required to seek authorization to illustrate a story. They may voluntarily observe the norms of their society, but they are not required to do so. So far, we have identified no restrictions on the use of the story that can be justified once it is not protected by an obligation of confidence. The practices of a culture do not trump freedom of expression. (I say ‘so far’ in this context because I am yet to examine the possibility that appropriation of a story could be wrong because it is offensive. This possibility is considered in the next chapter.)

Cultural Appropriation and Privacy I turn now to a consideration of the suggestion that certain forms of cultural appropriation involve the violation of insiders’ privacy. A work that involves subject appropriation, for example, could do so. Works that employ designs or patterns that a culture wishes to be private could also violate insiders’ privacy. One might regard the violation of privacy as either harmful or offensive. I address the question of privacy in this context because I take it that people have a right to privacy. In particular, the individuals who make up a culture have a right not to have their privacy violated by outsiders. The violation of a right I take to be harmful rather than something profoundly offensive. Certainly some subject appropriation could be wrong because it violates the right to privacy of individual members of a culture. The issue of privacy can be particularly sensitive when we are dealing with the representation of small cultures. Some indigenous cultures are often very like extended families. In these cases, all of the privacy rights of a culture’s members are violated at the same time. Still, the right of a culture’s members to privacy does not rule out all representation of other cultures. 125

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It is easy to see that representations that violate the privacy of a culture’s members are wrong. It is clearly wrong for someone to record surreptitiously an individual’s cell phone conversations and then write about them. Artists who obtain information about a culture by violating the privacy rights of individuals and then write about the culture act wrongly in precisely the same way that the recorder of private conversations does. Their actions are more wrong in that the privacy rights of more individuals are violated. The privacy rights of everyone who belongs to a culture are violated. So, for example, Richard Burton acted wrongly when, in 1853, he became the first Englishman to visit Mecca in the company of Muslim hadji. Non-Muslims were forbidden to take part in the pilgrimage to Mecca. As it happens, Burton wrote a narrative account of his journey, but he would have acted just as wrongly had he written a novel about his experiences. Burton acted wrongly because he violated the privacy of individual Muslims. Muslims did not wish to have non-Muslims present and this wish should have been respected. In determining the morality of any representation of another culture, a crucial issue must be addressed. This is the issue of how outsiders have obtained information about the culture they represent. We must ask whether any of the information an artist possesses was obtained surreptitiously, deceptively, or coercively. Information ought not to not come through the sort of stealth employed by Burton. Nor ought it to come deceptively, as it would if someone were to represent himself as an insider in order to obtain information. Neither should any form of coercion be employed. This is a point to which we will return in a moment. Obviously, outsiders ought not to violate an obligation of confidence. That is, if they have been told something in confidence, then it ought to remain secret. (At any rate, it is hard to imagine any justification for producing a work of art that would trump the obligation of confidence.) This said, outsiders can obtain information without violating insiders’ privacy. The information outsiders possess about insiders may have been obtained in the open interaction between cultures or through the free communication of authorized insiders. When this is the case (and the insiders’ culture is not harmfully misrepresented) the representation of other cultures in art is not wrong. In the previous paragraph, I referred to authorized members of the insiders’ culture. Sometimes information about a culture may only be shared with the approval of properly authorized members of the culture. It is the responsibility of outsiders to ensure that any information that 126

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they use in representing a culture other than their own has been shared with the proper authority. I have noted that information outsiders use in representing cultures other than their own ought not to be obtained by coercion. Here coercion ought to be understood in a broad sense. Colonization has coerced indigenous cultures in a wide variety of ways. Consider, for example, the documentation and photography of the religious ceremonies of the Hopi by the Mennonite missionary H. R. Voth. There is some evidence that he physically forced his way into religious ceremonies.17 More likely, the Hopi were simply afraid to exclude him because they felt that, as a white man, he was under the protection of the government. If the Hopi allowed Voth to observe and document their religious practices out of fear, they were effectively coerced. In general, the colonization of indigenous cultures is a coercive process. Consequently, any representation of a colonized culture may be ethically suspect. Artists and others who represent other cultures face a difficult problem when others have violated the privacy of members of some culture. Let us assume that Voth obtained information in a manner that violated the privacy rights of Hopis. Voth published the information that he obtained and it is now widely disseminated. His photographs are easily accessible. It would certainly be wrong for a novelist, say, to obtain information in the way that Voth is assumed to have done and then to write a novel set among the Hopi that draws up this information. It is less clear that the novelist acts wrongly in using this same information once it has entered into the public arena. On the one hand, it seems reasonable to expect outsiders to refrain from using intrusively obtained information for as long as the insiders object to its use. On the other hand, one might think, the harm caused by the violation of privacy has been done. Moreover, using the information, the outsider might be able to write sensitively and produce a work of real value about the culture whose privacy has been violated. The work might even benefit the insiders. This is a difficult issue and I am not certain how it is to be resolved. We have now explored the ways in which cultural appropriation could be harmful. I am skeptical about claims that cultural appropriation will damage whole cultures. Nevertheless, some content and subject appropriation can be a sort of assault on the members of a culture. Such appropriation is wrong. While this must be acknowledged, a great deal 17

Talayesva (1942), p. 252, alleged the use of force. For a discussion of this charge see Brown (2003), pp. 11–15. 127

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of content and subject appropriation is completely benign. Most cultural appropriation neither sets back the interests of individual members of cultures nor damages cultures. The discussion of the potential harm done by culture appropriation in this and the previous chapter does not amount to a full exposition of the ways in which appropriation could be wrong. Cultural appropriation could be wrong, not because it causes harm, but because it is offensive. In particular, it could cause profound offence.

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Chapter 5

Profound Offence and Cultural Appropriation

Harm, Offence, and Profound Offence This chapter is an exploration of the conditions under which profoundly offensive acts of cultural appropriation are wrong. When any action is profoundly offensive, we have a prima facie reason to believe that it is wrong. Certainly, some instances of cultural appropriation have proved profoundly offensive, so there is a prima facie case against some acts of cultural appropriation. This does not show that all cultural appropriation is wrong. Not all of it is offensive. More importantly, I will argue that not all acts of cultural appropriation that cause profound offence are immoral. The prima facie case can be overcome in many instances. The relationship between profoundly offensive acts and cultural appropriation has many dimensions. This first section is devoted to analyzing the concept of profound offence. In the next, I will present some examples of acts of cultural appropriation that have proved profoundly offensive. In the third section I will present what I take to be the key to assessing these offensive acts of cultural appropriation. A full discussion of cultural appropriation will involve an examination of the social value of the works that result from appropriation (section four) and a discussion of freedom of expression (section five). Cultural appropriation that is offensive because it is regarded as a violation of something sacred to a culture will be considered in section six. Finally, I will discuss time and place restrictions on cultural appropriation (section seven), the relevance of tolerance by insiders of cultural appropriation (section eight), and the distinction between reasonable and unreasonable offence (section nine). Before we proceed any further, I need to indicate what I mean by the phrase, ‘profound offence’. I will begin by distinguishing harm and 129

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offence. Harm can be defined in a number of ways but I will regard it as a setback to someone’s interests.1 When one is physically injured, robbed, or cheated, one is harmed. One can also be harmed, as we have seen, by an assault on one’s culture. People who have been harmed are unable to pursue their interests and projects to the same extent as they could prior to being harmed. When one is offended, one is in a state of mind that one dislikes. One is disgusted, outraged, appalled, or in a similar state of mind. The distinction between harm and offence is, perhaps, not hard and fast. Arguably, certain offended states hinder people in the pursuit of their interests and, thus, cause harm. For example, protracted profound offence could prove debilitating. Still, a rough and ready distinction exists between being harmed and being temporarily put in an unpleasant state of mind. The following example may motivate the distinction. In some countries, including Indonesia, many people are offended by public kissing. One can advise the offended individuals to ignore the offensive activity, to look away, and get on with their lives as before. This is sensible advice. If the same individuals have been physically harmed, the same advice makes no sense. They are unable to get on with their lives as before. I may have been harmed by, for example, having my leg broken. I cannot (in the short term, at least) pursue my favorite sports. I cannot ignore the harm in the same way that I can ignore the offence. Profound offence is a subset of the offended states. The term is borrowed from Joel Feinberg.2 A profound offence is to be contrasted with garden-variety offences: affronts to the senses and polite sensibilities. The filthy man on the bus is offensive in a garden-variety sort of way, as are the bus riders who openly and noisily fondle each other. A profound offence is an offence to one’s moral sensibilities or insulting in a way that the unwashed rider is not. Such an offence strikes at a person’s core values or sense of self. An example of such offence is provided by the American Nazi Party’s infamous 1977 application for a permit to parade through Skokie, Illinois, a largely Jewish neighborhood. Many Jews would find such a parade insulting, abusive, and derogatory. It is an affront to the core values of Jews and their sense of self-worth. In short, it would be profoundly offensive. (This is not to say that the parade would cause offence in all Jews.) A similar example would be the denial, by Japanese nationalists, that the Rape of Nanjing occurred. The burning of a national flag or the desecration of a sacred object would be other examples of 1 2

Feinberg (1985a), ch. 1. Feinberg (1985b), ch. 9.

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profoundly offensive activities. When people maintain that cultural appropriation is offensive they plainly mean that it is profoundly offensive in a similar manner. One of the marks of a profound offence is that it is offensive even when unwitnessed. The unwashed man on the bus is offensive, but does not offend if he stays home. The bus riders who engage in sexual acts do nothing offensive when they engage in the same activities in privacy. In contrast, the bare knowledge that Nazis are flaunting swastikas in Skokie is offensive. Or consider the cartoons depicting the prophet Mohammed, published in the Jyllands-Posten in 2005, which gave rise to widespread rioting in the Muslim world in early 2006. Muslims who never saw the Danish cartoons were offended by the knowledge that they exist. Any instance of content appropriation may similarly be offensive even when a member of the offended community does not witness it. The knowledge that artworks are being produced by means of cultural appropriation may be offensive even to people who do not experience the works themselves.

Examples of Offensive Cultural Appropriation Before we proceed to investigate the rights and wrongs of offensive cultural appropriation, let us have a few concrete examples before us. Each of the instances chosen has sparked profound offence in members of the culture from which something has been appropriated. Let us begin with some instances of offensive subject appropriation. George Southwell’s murals in the foyer in the Parliament Buildings in Victoria, British Columbia, are an example. (These paintings have now been moved because they were the source of offence.) Southwell was an Englishman who immigrated to Canada early in the twentieth century. Beginning in 1935, he executed a series of paintings illustrating the history of British Columbia from 1792 (the arrival of George Vancouver) until the 1860s. Two of his murals have proved particularly controversial: Labour, which depicts bare-breasted Indian women participating in the construction of Fort Victoria, and Justice, in which a native Indian is arraigned before a colonial judge. Southwell’s Labour has proved offensive, in large part, because it is held to be a serious misrepresentation of aboriginal culture. It is also regarded as offensive because it is seen as one of a long series of artworks and histories which have exposed the culture of First Nations to ridicule. 131

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(Contemporary aboriginal peoples deny that their foremothers exposed their breasts in public. Anthropological evidence indicates that breasts were commonly exposed.) Justice is offensive because the Indian is in a submissive posture before the judge. It can be regarded as a metaphor for the oppression of aboriginal peoples by European colonists. That these murals appeared in the British Columbia Legislature made them even more offensive. In April 2001, the First Nations Summit, an organization broadly representative of aboriginal people in British Columbia, wrote a letter to the provincial government about the murals. The letter stated that Southwell’s “paintings of bare-breasted aboriginal women and of aboriginal persons in subservient positions are . . . highly offensive, demeaning and degrading to First Nations people in the province [of British Columbia].”3 Individual aboriginal persons have expressed similar sentiments. More recent paintings have been controversial because of their use of subject appropriation. A series of erotic paintings of black women by Katerina Thorsen, a white woman, is a case in point. Janisse Browning, a woman of African and First Nations ancestry, states that these paintings left her “uncomfortable” and “disturbed.” Other women of color experienced “outrage and disgust” when viewing these paintings.4 Visual representations of First Nations women in popular media have also proved controversial. For example, the representation of the title character in Disney’s animated film, Pocahontas (1995) has been described as offensive, as has the depiction of Aztec women in The Road to El Dorado (2000).5 Even I find the representation of Native Americans in Disney’s Peter Pan (1953) to be unconscionably offensive. Works of literature have also proved profoundly offensive. Kinsella’s books set on the Hobbema Indian reserve, for example, have offended many aboriginal persons. His stories have been described as “upsetting.” The Orillia public library in Ontario agreed to remove four of Kinsella’s books from its shelves on the grounds that they were offensive to aboriginal people. (This decision was later reversed.) Clearly, the offence felt is profound offence: the paintings and writings in question are regarded as an affront to the self-respect of members of various indigenous cultures. The examples I have just given are from small-scale disputes in North America, but cultural appropriation can have an international impact. 3 4 5

Quoted in Archibald, Barman, Black, Lutz, and Tsaqwasupp (2001), p. 7. Browning (1992), pp. 33f. Roppolo (2003), p. 188.

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This is illustrated by events in early 2006. The Jyllands-Posten cartoons, the source of so much controversy in the Muslim world, are instances of offensive subject appropriation. They are representations by Danish cartoonists of Mohammed, a member of another culture. That is, they are offensive qua instances of subject appropriation. (These cartoons have to been seen against a background of real harm to the Muslim world by Western countries. The cartoons add insult to injury. In themselves, however, they were merely offensive.) A similar example of offensive subject appropriation would be provided by Theo van Gogh’s film, Submission (2004). It provided a representation of a culture other than the filmmaker’s that proved, with tragic results, to be profoundly offensive. We have already considered, in earlier chapters, some examples of content appropriation, which have aroused profound offence. Robert Bringhurst’s retelling of the stories of the Haida culture is an example of content appropriation that has proved profoundly offensive. On one occasion, a young Haida student was so offended by Bringhurst reading aloud, in Haida, from Skaay’s works that, “she . . . covered her mouth and bolted from the room, making it quite plain that she felt suddenly and violently ill.”6 As noted in earlier chapters, a great deal of controversy has surrounded the appropriation of aboriginal arts and crafts by white Australians. This sort of appropriation was earlier considered as potentially being a sort of theft. Objections have also been raised to this sort of appropriation on the grounds that it is profoundly offensive. A report already cited states that the simple use of aboriginal cultural products by non-aboriginals can be “inappropriate, derogatory, culturally offensive or out of context.”7 Often the use of aboriginal cultural products is profoundly offensive because these products have a special sacred or cultural significance. Another Australian report also finds that the appropriation of the content of aboriginal culture can be “derogatory” and “offensive.”8 The offence in question is clearly profound offence. Similarly, the offence inspired by females playing the didgeridoo is profound offence. In certain aboriginal cultures such performances are not proper.9 Object appropriation can also be profoundly offensive. It is “deeply offensive to Native American communities” that sacred objects, a 6

Bringhurst (1999b). Janke (1998), p. 19. 8 Mellor and Janke (2001), p. 20. 9 A didgeridoo player “who is either non-Indigenous or female may not be appropriate.” Mellor and Janke (2001), p. 59. Others go farther and describe didgeridoo playing by a female as “offensive.” 7

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category that includes certain artworks, produced by their culture are in museums.10 These communities believe museums are simply not the context in which such objects are appropriately displayed. Australian aboriginal cultures have similar attitudes towards the display of certain sacred artworks in museums. They have also objected to commercial trade in paintings and other objects which are regarded as sacred objects on the grounds that it is offensive.11 In this chapter I will focus on offensive content and subject appropriation. Important issues are raised by the offensive appropriation of sacred objects, but many of these issues lie beyond the scope of this essay. When object appropriation is profoundly offensive the objects appropriated are usually not primarily works of art. My other reason is that, most of the time, there is not much to be said in defense of the offensive appropriation of a culture’s sacred objects. If certain objects are genuinely sacred, or otherwise crucial to a culture, the members of the culture are unlikely freely to part with the objects. If they have been appropriated, the culture has likely been harmed, not merely offended. That is, the objects were likely stolen. On the other hand, I am interested in defending subject and content appropriation, at least in many contexts. They can potentially give rise to valuable new works of art and I hope to show that such appropriation, even when profoundly offensive, is not always wrong.

The Problem and the Key to its Solution The remainder of this chapter is devoted to answering the question of what follows from the fact that cultural appropriation can be profoundly offensive. I take it that the profound offensiveness of an act is a prima facie reason for thinking that it is wrong. All things being equal, one ought not to engage in activities that are profoundly offensive. The existence of a prima facie case against offensive cultural appropriation is not the end of the story. The reasons one might have for thinking that offensive acts of subject or content appropriation are wrong are not indefeasible. In fact, reflection will reveal that the reasons one might have for thinking that offensive acts of subject or content appropriation are wrong are almost always defeasible. 10 11

Nanson (1997), p. 299. Janke (1998), p. 308.

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One might deny the existence of a prima facie case against activities that are profoundly offensive. One could argue that people ought not to be offended by acts of cultural appropriation. People can avert their eyes or ignore offensive activities and, consequently, artists (and others) who engage in offensive acts have done nothing wrong. One could even hold that people ought to have thicker skins and it is their own fault if they find themselves in an unpleasant state when they become aware of certain acts. “Whenever anyone has offended me,” Descartes wrote, “I try to raise my soul so high that the offence cannot reach it.” Interestingly, this attitude is suggested by one of the captions of the controversial Danish cartoons. It reads, “Relax, friends, at the end of the day, it’s just a drawing by an infidel South Jutlander.” It was also the attitude adopted by a rabbi in Copenhagen when a Danish newspaper published offensive cartoons representing the Holocaust. When asked about them he responded by saying, “You know, I’ve seen worse.” I agree that there is something to the line of argument just suggested. Below I will hold that sometimes it is unreasonable to take offence. Nevertheless, I still think that there is a prima facie case against offensive actions. Consider the following analogy. Sometimes my children (who are normally delightful) tease each other. When this happens, I will tell my son, say, that he ought to ignore his sister and not rise to the bait. This is true, but his sister still ought not to tease him, knowing that he will not like it. Similarly, there is a presumption that I ought not to engage in an action that will offend others. It causes them displeasure, even if it ought not to do so. Although there is a prima facie case against acts, including acts of cultural appropriation, that are profoundly offensive, the prima facie case can be overcome. In my investigation of the conditions under which the prima facie case can be overcome, I will adapt a series of arguments developed by Joel Feinberg. Feinberg is concerned with the question of when a state is justified in regulating offensive actions. That is, he asks a question about what ought to be legal. I am concerned with the question of when it is wrong to perform certain offensive acts. This is a question about what is moral. Despite the fact that I am asking a different question, Feinberg’s approach is helpful. If the state is justified in regulating certain offensive behavior, then it is fair to say that the behavior is immoral. (This is not to say that the state is justified in regulating all immoral behavior or that all illegal behavior is immoral.) Consequently, considerations that identify the rightly regulated offensive actions will also pick out the ones that are wrong. Feinberg’s approach enjoins us to pay attention to a variety 135

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of considerations.12 These include the social value of the act and the value of free expression. Other factors include information about the availability of alternative arrangements that would lessen or eliminate the offensiveness of an act and the extent to which an act is tolerated. The reasonableness of the offence is also often a relevant consideration.

Social Value and Offensive Art Let us begin by asking whether offensive acts of cultural appropriation may be defended on the grounds that they have redeeming social value. In general, although some people find an act to be offensive, it may nevertheless have social value. Some people are, for example, profoundly offended by the advertising of condoms on television. These people see such advertising as condoning certain types of sexual activity and this shocks their religious or moral sensibilities. Nevertheless, such advertising is not always wrong. (Certain restrictions on the time, place, and manner of condom advertising may be morally required.) In part this is because the offence experienced by certain people is more than counterbalanced by a societal interest in the prevention of sexually transmitted diseases and the prevention of unwanted pregnancies. The gratuitous hurling of racial slurs, in contrast, is profoundly offensive without any counterbalancing social value. It is wrong. Now the question is whether cultural appropriation, when it is profoundly offensive, is more relevantly similar to the advertising of condoms or to gratuitous racial epithets. This question cannot be answered without a fair amount of empirical evidence and it cannot be answered with full generality. We need to know how offensive the members of some culture find a given act of cultural appropriation. We also need to determine the social value of artworks whose production involves cultural appropriation. Only when this information is available are we in a position to determine whether a given act of cultural appropriation is unobjectionable. Sometimes, I expect, an artwork will have a degree of social value that can counterbalance the offence felt by the members of a culture from 12

Feinberg’s views are summarized in Feinberg (1985b), p. 44. I depart from his position in thinking that we ought to ask whether someone is reasonably offended. The reasons for departing from Feinberg on this point are given below. They are related to the fact that I am concerned with a moral question while Feinberg is concerned with jurisprudence.

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which something has been appropriated. Perhaps the clearest instances of subject appropriation with a high degree of social value are provided by some of Shakespeare’s plays. Shakespeare was clearly engaged in subject appropriation when he represented Jews, Moors, and others. Equally clearly, the works are profoundly offensive. Even today many Jews regard The Merchant of Venice and its treatment of Shylock as profoundly offensive. Nevertheless, the plays that resulted from Shakespeare’s cultural appropriation have a degree of social value that far outweighs their offensiveness. (Here the social value is aesthetic value.) Shakespeare, I would say, did not act wrongly in penning The Merchant of Venice or Othello. Similar points could also be made about other great artists who engage in cultural appropriation that proves offensive. Instances of socially valuable cultural appropriation are not restricted to the past. Some of the most interesting contemporary works of art result from cultural appropriation and some of these have proved offensive. That said, not everyone who engages in cultural appropriation is a Shakespeare or even a good artist. For all I have said so far, the dilettante whose profoundly offensive use of cultural appropriation produces aesthetic rubbish could still have acted wrongly. After all, the works of the dilettante have little or no aesthetic or other value to counterbalance their offensiveness. For a more general defense of offensive cultural appropriation we need to reflect on freedom of expression.

Freedom of Expression Freedom of expression is valuable, at least in part, because it will tend to increase social value. Given that this is the case, I have already argued that reflection on the value of freedom of expression will lead to the conclusion that artists do not act wrongly when their appropriation of subjects or content causes profound offence. Nevertheless, more needs to be said about the relationship between freedom of expression and the ethics of cultural appropriation. Even when an act of cultural appropriation has limited social value, it may not be wrong. Under certain circumstances, I am extremely reluctant to say that an act of free artistic expression is wrong, even when it is profoundly offensive and does not result in particularly good art. A case can be made for saying that artists cannot act wrongly in expressing themselves in their art, even when their art is profoundly offensive and not particularly good.

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It is important to remember here that I am talking about occasions when the exercise of freedom of expression may be wrong. I am not talking about the legal regulation of free expression. Unless this distinction is kept in mind, my whole discussion of free expression may seem to be a non-issue in the light of United States First Amendment jurisprudence or a similar body of legal literature. Everything here is completely compatible with this jurisprudence. Bear in mind that the First Amendment or similar constitutional rules can protect an act and yet the act is still immoral. There are clear cases of free expressions which are profoundly offensive, but not wrong. In a conservative Christian society, an atheist who expressed his religious opinions might inevitably offend the sensibilities of the majority. Yet the atheist does not act wrongly in expressing his beliefs and values. This will be true even if the atheist’s act of expression has little or no social value. Perhaps his views are false, and tend to lead people to perdition, or simply harden the views of the conservative majority. Similarly, no matter how many people are profoundly offended by a defense of Darwin’s theory of evolution, it is not wrong to defend it. People who express themselves in works of art are no different than those who express themselves in tracts. Andres Serrano could reasonably have foreseen that Piss Christ, a photograph of a crucifix immersed in urine, would profoundly offend many Christians. Offensive as this work has proven, Serrano did nothing wrong in creating and displaying it. Even if he was aware that the work would be profoundly offensive to Christians, Serrano did not act wrongly. An artist does not necessarily act wrongly when producing a work with the intention of shocking some group out of their complacency. By parity of reasoning, cultural appropriation need not be wrong even when profoundly offensive. As Stephen Davies notes, art is often “expressive of . . . pervasive and foundational values and beliefs.”13 The free expression of one’s values and beliefs, even when they are offensive, has a special moral status. Still we may wish to say that some people who express themselves act wrongly. The angry shouting of political slogans, or the publication of offensive caricatures, are expressive acts. Particularly when they are the product of malice or spite, such acts may very well be wrong. The Nazis in Skokie are a case in point. Even if constitutional guarantees of freedom of expression give them the right to strut and wave placards in a 13

Davies (2001), p. 260.

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profoundly offensive manner, it is still wrong of them to exercise this freedom. Although acts of free expression can be wrong, artistic expression that involves cultural appropriation is seldom, if ever, analogous to Nazis marching in Skokie, even when it is the source of profound offence. My suggestion is that the creation of a work of art is frequently a privileged form of expression. The argument for this conclusion starts from the premise that the creation of an artwork is often essential to an individual’s self-realization. Artists often use their works to understand matters that they find to be of pressing importance. At least some of the time, artists feel compelled to create works that enable them to explore the issues that they investigate through their art. Here, for example, is what Margaret Drabble says in The Red Queen (2004), her novel about an eighteenth-century Korean crown princess: I could not get her out of my mind. She insisted on my attention. She made me follow her, from text to text, from country to country . . . Several times I have tried to ignore her promptings and to abandon this project, which has been full of difficulties, but she was very persistent.14

We should also remember that artistic creation and expression is often a form of inquiry. I conclude that artists do not act wrongly when, in good faith and in response to a compelling imperative, they produce artworks in pursuit of self-realization and disinterested inquiry. I suggest that this is true even when the artworks produced are a source of profound offence. I am not claiming that the value of self-realization and expression of beliefs and values is sufficiently great to outweigh any profound offence caused by cultural appropriation. I am not even certain that this is always true. I am making the more fundamental point that individuals do not act wrongly when their pursuit of self-realization and inquiry requires expressive acts that involve profoundly offensive cultural appropriation. The importance of artistic expression to self-realization and inquiry is part of what distinguishes the artist who engages in cultural appropriation from the Nazi who marches through the Jewish neighborhood. The Nazi’s march is not essential to his self-realization. (The Nazi may believe – or claim – that it is essential, but he is deluded or disingenuous. No one is fulfilled as a person in this way. One is only corrupted.) The 14

Drabble (2004), p. ix.

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marching Nazi, moreover, contributes nothing to inquiry. The artist who engages in offensive cultural appropriation is distinguishable from the marching Nazi in another way. The marching Nazi cruelly intends to cause offence. Cultural appropriators presumably do not. Their intention is to create works of art and engage in self-realization and inquiry. They may be aware that their works will be offensive in some quarters. If so, they will often believe that the offended persons will benefit from being shocked. If artists intend merely to cause gratuitous offence to some people, then perhaps they forfeit their artistic privilege and act wrongly in engaging in offensive cultural appropriation. Artists who engage in offensive cultural appropriation not as inquiry or as a means to self-realization, but only for pecuniary reasons may very well act wrongly, particularly if inoffensive ways of creating art and engaging in selfexpression are available to them. Freedom of expression carries with it certain responsibilities. When outsiders appropriate content from a disadvantaged minority culture, the source of the appropriated material ought to be fully and publicly acknowledged. (Bringhurst’s cultural appropriation has been controversial but he has always acknowledged his sources.) This will especially be the case when insiders lack opportunities to express themselves in their own style. I have in mind the situation of African-American blues and jazz musicians. Not long ago, white musicians who appropriated musical styles from African-Americans had opportunities to record and perform that minority musicians were denied. These white musicians were certainly obliged to acknowledge their sources. A failure to acknowledge the sources would be objectionably offensive. I am not here suggesting that acknowledgement of sources makes an act of cultural appropriation inoffensive and acceptable. Rather, I intend only to remark that a failure to acknowledge sources is a gratuitous and unnecessary source of (perhaps additional) offence that can render wrong otherwise unobjectionable cultural appropriation. Artists ought to be as respectful as possible when appropriating content. This imperative is particularly strong when artists borrow from a disadvantaged minority culture. The members of such a culture will quite reasonably be particularly sensitive to further indignities and artists ought to strive to avoid giving offence where possible. Presumably artists who appropriate content from a culture do so because they find something of value in that culture. This ought to be apparent from all that they say and write about the culture from which they borrow. Certainly Bringhurst has been very careful to treat with the greatest 140

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respect the Haida culture from which he draws. He has compared the art of Ghandl to the masterpieces of Rembrandt and Velázquez, Haydn and Mozart.15 For Skaay and his culture he has equally high praise. An artist who engages in cultural appropriation ought to be sensitive to the plight of minority cultures that have been subject to cultural imperialism. A failure to do so can cause unnecessary offence. Bringhurst has denounced in the clearest possible terms the “cultural warfare” that Europeans practiced against the Haida. He has compared this warfare to the atrocities committed by Hitler and Stalin.16 Note that, in this paragraph, I speak of being as respectful as possible and talk of avoiding unnecessary offence. An artist who, by engaging in subject appropriation, draws attention, for example, to a deep current of misogyny in a culture may profoundly offend many insiders. Here the artist may be unable to avoid offence. This does not make wrong the act of producing the artwork.

The Sacred and the Offensive Cultural appropriation is often profoundly offensive because it reveals something insiders regard as sacred. The offensive appropriation could be either subject appropriation or content appropriation. That is, the representation of certain sacred subject matters by outsiders could be offensive, as could the use of certain designs, motifs, or other artistic elements that insiders consider sacred. We have already considered a work of art, Serrano’s Piss Christ, that involves an offensive representation of something sacred. Chris Ofili’s The Holy Virgin Mary (1998) is another example of a work that has proved highly offensive as a result of its treatment of sacred subject matter. It is a multimedia picture of Mary created in part with elephant dung. Small pictures of female buttocks and genitalia, cut from pornographic magazines, surround the central image. Ofili’s picture was, for a time, a cause célèbre when Rudolph Giuliani, then mayor of New York, objected to its display at the Brooklyn Museum. I do not believe that Serrano and Ofili acted wrongly in creating these works. In part this judgment depends on the view that, in creating these images, Ofili and Serrano were not merely trying to offend Christians. Ofili has said that, in his work, he

15 16

Bringhurst (1999a), p. 63. Bringhurst (1999a), p. 70. 141

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wanted to juxtapose the profanity of the porn clips with something that’s considered quite sacred . . . I think the Virgin Mary was an excuse for pornography in the homes of these holy priests and Godfearers. So I think in the 90s a version of it would allow the pornographic images to come more to the surface.17

I take this as evidence that he was engaged in the important project of artistic expression. It is important also that no one was forced to view the pictures. If neither the production of Piss Christ nor The Holy Virgin Mary was wrong, despite the fact that they are profoundly offensive to religious sensibilities, it is hard to see how works that result from cultural appropriation, and that are similarly offensive, are wrong. At least, the production of such works will not be wrong so long as the artists who produce them are, like Ofili and Serrano, engaged in a serious project of artistic expression. This even applies to the Jyllands-Posten cartoons, which are examples of profoundly offensive appropriation of a sacred subject matter. Editorial cartoons are not, perhaps, particularly sophisticated artworks, but works of art they are and cartoons can be vehicles of artistic expression. Carsten Juste, editor of the newspaper, has stated that the cartoons were published as “part of an ongoing public debate on freedom of expression.” The cartoons were not intended to be offensive.18 So it was not wrong to draw or publish these cartoons. (The gratuitous republication of the cartoons, once the full extent of Muslim outrage became known, may be another matter.) The appropriation of sacred content from aboriginal cultures has also proved offensive. Nevertheless, it is not always wrong for outsiders to appropriate basic designs and patterns from Australian aboriginal cultures, even if members of these cultures are offended by the use of designs that they regard as sacred. The outsiders could be producing artworks that are expressive of their fundamental beliefs and values. Offensive appropriation of sacred designs and subjects, when it is not part of a project of artistic expression, is another matter. Consider, for 17

Quoted in Paul McEnery, “A Message To You, Rudy: How color-blind is Giuliani’s clampdown?” Gettingit.com: a webzine, October 1, 1999. (http://www.gettingit.com/ article/130). 18 See the open letter published on 30 January, 2006 (in English, Danish, and Arabic) on the Jyllands-Posten website. The site also states that the cartoons “were not intended to be offensive, nor were they at variance with Danish law, but they have indisputably offended many Muslims for which we apologize” (http://www.jp.dk/meninger/ ncartikel:aid=3527646). 142

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example, the production of T-shirts with what appear to be Australian aboriginal designs. These are not copies of aboriginal designs. (Aboriginal artists have won a series of lawsuits prohibiting the reproduction of their works.) The T-shirt designs are usually original designs, loosely based on aboriginal originals. Aboriginal people regard these as caricatures of sacred designs and, consequently, as profoundly offensive.19 Suppose that designs on T-shirts are genuinely profoundly offensive to members of aboriginal cultures. That is, let us grant that concern about the production of these T-shirts is not concern about commercial competition. In this case, content appropriation for the production of T-shirts is almost certainly wrong. I say ‘almost’ here because I can imagine a case where a non-aboriginal Australian can only save his family from starvation by producing T-shirts with offensive quasi-aboriginal designs. One ought not to cause widespread profound offence, especially not to members of a culture that has already suffered serious harms and affronts, and especially not if one can make a living in a way that is not the source of offence.

Time and Place Restrictions Certain offensive acts could be completely acceptable when performed at certain times and places, but wrong and even properly subject to regulation when performed at others. Certain sexual activities, for example, are unobjectionable when performed at home but wrong and even rightly illegal when performed on a bus. The moral assessment of certain offensive acts of cultural appropriation may similarly depend on considerations about time and location. Artists who engage in cultural appropriation may be expected to take reasonable steps to avoid or lessen offence by restricting the venues of their work. Southwell’s Justice is clearly an instance of subject appropriation in the wrong place. Southwell certainly did not intend to produce a work that would be profoundly offensive to British Columbia’s aboriginal peoples. He greatly admired the art of the West Coast First Nations and enjoyed excellent relations with them, travelling with and living among them for many years. On his death in 1961, the Pender Harbour First Nation gave permission for him to be buried in the band’s cemetery. This was a

19

For a discussion of appropriation and T-shirt designs, see O’Brien (1997), p. 65. 143

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significant and possibly unique honor.20 In portraying the Indian man before the white judge, Southwell may have had in mind a statement by Sir Matthew Begbie, first chief justice of British Columbia. Begbie was famous for stating that all people would be equal in his court. All this said, the mural is profoundly offensive to a significant number of aboriginal people. Worse, it was found in the foyer of the legislative assembly, a building where all people ought to feel comfortable and equal before the law. Suppose that today a legislature were commissioning murals for its buildings. It would clearly be wrong to erect murals anything like Southwell’s Justice. Important and symbolic public buildings are not the only venues where profoundly offensive cultural appropriation is wrong. Displaying profoundly offensive works of art in other public venues could also be objectionable. The act of displaying works produced by means of cultural appropriation could be relevantly similar to acts that Feinberg considers. Feinberg describes the desecration of sacred symbols, the burning of national flags, cannibalism (so long as the person eaten gave his consent), and other profoundly offensive acts as “harmless eccentricities” if they are conducted in private.21 The state ought not to interfere with such practices. Suppose, however, practicing flag burners or cannibals display invitations to join in their activities on huge neon signs, such as those found in Times Square or Piccadilly Circus. Even Feinberg, a dyedin-the-wool liberal, approves of the regulation of such profoundly offensive advertising. Engaging in an activity that profoundly offends others is permissible and morally unobjectionable. Flaunting one’s performance of the offending act is another matter. Just as flag burning and cannibalism are wrong in certain places, so are certain artistic acts. Serrano did not act wrongly in creating Piss Christ. He ought not, however, to display it outside a cathedral just after a Good Friday mass. This is true even if the work was produced with the intention of provoking offence and prompting Catholics to reflect on their faith. It is one thing to provoke offence in someone who has freely entered a gallery, knowing that offensive photographs will be displayed. It is another to offend those who have given no consent. Another work that has caused a great deal of profound offence is Salman Rushdie’s Satanic Verses (1988). Offensive as this work has proved, Rushdie did not 20 Aubin van Berckel, “Renegade Pioneer Artist won Aboriginals’ Respect.” Vancouver Sun, 22 August, 2000. 21 Feinberg (1985b), p. 71.

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act wrongly in writing it. Nevertheless, Rushdie would act wrongly if he were to broadcast a reading from his novel just outside a mosque during Ramadan. Similar considerations apply to the public performance or display of offensive cultural appropriation. It would be insensitive and wrong for a non-aboriginal Australian to paint, in an aboriginal style, a mural on the wall of a building across the street from an aboriginal cultural centre. In all of these examples, artists have many alternative opportunities for performing or displaying their art. Just as certain places are the wrong venues for cultural appropriation, so are certain times. A female didgeridoo player ought not to give a recital at the Sydney Opera House knowing that, in another part of the complex, aboriginal Australians are gathered for a major cultural festival. The didgeridoo player will have plenty of alternative opportunities to express herself on her chosen instrument. She can avail herself of many of these opportunities without causing profound offence to aboriginal people. Similarly, W. P. Kinsella ought not to give a reading from one of his Hobbema books at a festival of First Nations literature. He has many other opportunities to give public readings of his work. It is hard to see how a state could formulate a regulation that would fairly prevent untimely cultural appropriation. Still, artists can be expected to use good judgment in choosing when to perform or present their art. If they do not, they have acted wrongly even if not contrary to any justifiable law. So long as artists’ engagement in cultural appropriation is suitably discreet, the offensiveness of their actions provides no basis for the judgment that their actions are wrong. Some people will be offended by the bare knowledge that works produced by means of cultural appropriation are being produced and displayed. The offence caused to these people is unfortunate, but those who cause it do not act wrongly. Some people are profoundly offended by the bare knowledge that homosexual activity is taking place in a house in their community. Nevertheless, people ought to be free to engage in homosexual acts in the privacy of their own homes. Artists who engage in cultural appropriation in suitable places and at suitable times are in precisely the same situation.

Toleration of Offensive Art Feinberg argues persuasively that the extent to which a type of act is tolerated is relevant in determining whether it ought to be regulated.22 22 Feinberg (1985b), p. 31. 145

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Arguably the extent of toleration shown to a type of act is also relevant in determining its morality. If a type of action is offensive to a small number of people, but widely tolerated, this counts against the claim that the action ought not to be performed or is appropriately subject to regulation. When investigating the ethics of cultural appropriation, the situation is more complicated. Cultural appropriation may be widely tolerated by the majority of people in some society. Perhaps, however, the society contains a minority culture, such as North America’s First Nations and Australia’s aboriginal peoples. It may turn out that cultural appropriation is not tolerated within the minority culture. In cases such as these, the relevant consideration is not whether cultural appropriation is tolerated within the community as a whole. Rather, it is whether cultural appropriation is freely tolerated within the minority culture. Note the qualification: we need to know whether cultural appropriation is tolerated freely, rather than as the result of indoctrination or coercion. Let me offer the following analogy in support of this claim. Suppose that, in some society, only a small minority of the people have a sense of smell (call them olfactory people). In this society the vast majority of people happily tolerate poor personal hygiene and are prepared to practice poor hygiene themselves. The small minority of olfactory people in this society finds poor hygiene offensive. In such a situation, we would say that people who practice poor hygiene, and who interact with olfactory people, act wrongly. Olfactory people deserve special consideration because they have a sensitivity lacked by members of the majority. Similarly, members of a minority culture have a special sensitivity. Those whose culture is regularly belittled may well have a raw nerve that is easily irritated. Other members of the society are obliged to be cognizant of this sensitivity. Members of the minority may even deserve certain protections. I have already argued that, except in special circumstances, offensive cultural appropriation is not wrong. I am not now suggesting that widespread opposition to cultural appropriation within a minority culture is a good basis for saying that such appropriation is wrong. Degree of toleration within a minority culture is, however, a relevant consideration when weighing some of the other factors we have considered. In particular, it can be relevant when considering appropriate times and places. Cultural appropriation may be tolerated by many within a minority culture, while still profoundly offensive to a few. In another situation, cultural appropriation may be deeply offensive to all members of the minority culture. In these different situations different accounts must be given of appropriate times and places for cultural appropriation. For example, suppose 146

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only a few aboriginal people are profoundly offended by females playing the didgeridoo. In this situation, white female didgeridoo players are under fewer moral restrictions than if all aboriginal people find such playing offensive. A white woman playing didgeridoo at an aboriginal cultural festival may be unobjectionable.

Reasonable and Unreasonable Offence Sometimes we say that a person is unreasonably offended. Suppose, for example, that an English-speaker (Smith) is visiting France. Smith’s French is heavily accented, but reasonably correct and intelligible. Imagine now that one of the natives of this country (Forgeron) is offended by Smith’s attempt to speak French. Forgeron feels insulted and is disgusted by Smith’s awkward pronunciation. Forgeron angrily tells Smith that he (Forgeron) can understand English perfectly. Smith intended no offence when he addressed Forgeron in French. On the contrary, he was trying to be polite and show respect for the country he was visiting. Under these circumstances, Forgeron has unreasonably taken offence. On other occasions, one quite reasonably takes offence. It is perfectly reasonable for members of minority groups to be offended by racist comments made by a judge. The offence was reasonably foreseeable and, more importantly, the members of the minority have a right to expect equal treatment before the law. If there has been a history of unequal treatment, the offence is particularly reasonable. An act is reasonably offensive when it violates appropriate norms of conduct. Forgeron has no good reason for being offended by Smith’s actions. Smith has violated no appropriate norms of conduct. Indeed, he seems to have been faultless. The members of the minority group, in contrast, have good reasons for being offended. The judge has violated appropriate norms of conduct for someone who holds a responsible public position. He ought to have been sensitive to the feelings of people who have been historically disadvantaged. There will be some hard cases where it is difficult to determine whether someone is reasonably offended. Often these will be cases where there is a difference of opinion about appropriate standards of conduct. When we are dealing with two cultures such difference of opinion may be common. Still, in principle and often practice, it is possible to say when someone is reasonably offended. I want now to explore the implications for our present concerns of this distinction between reasonable and unreasonable offence. The 147

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jurisprudence literature is divided on the question of whether one should consider whether people are reasonably offended when considering whether to regulate offensive behavior. Feinberg thinks a reasonableness criterion is unnecessary. Unreasonable offence will be so rare that the regulation of behavior that gives rise to this offence will not be necessary. (He may be unduly sanguine.) He also believes that the state ought not to be in a position of judging whether or not someone is reasonably offended.23 Other writers think that the state ought to consider whether some offence is reasonable. A community of racists might be profoundly offended by a large, centrally located billboard featuring an inter-racial couple kissing. Their offence is unreasonable. The unreasonableness of their offence is a reason why the billboard ought not to be regulated.24 I will not attempt to resolve this debate in jurisprudence. Instead I will focus on the question of whether, from a moral point of view, the reasonableness of a reaction of offence ought to be taken into account. Here it seems uncontroversial that it is relevant. Feinberg’s most serious worry is that the state ought not to be in a position of judging the reasonableness of citizens’ responses. Errors are likely to be all too common and the result of prejudices. Ethicists need not worry about this as theirs is a more theoretical inquiry. As long as we can distinguish between reasonable and unreasonable offence in a principled manner, the distinction is morally relevant. From a moral point of view, acts that cause unreasonable offence have a different standing than those which cause reasonable offence. If one acts in a way that one knows will reasonably offend people, this is a prima facie reason for thinking one’s action is wrong. If people act in a way that causes unreasonable offence, we do not have the same reason. One can reasonably expect that others will react reasonably to one’s actions. If they do not, that is not the actor’s fault. The question now is whether insiders are reasonably offended when outsiders appropriate content or subjects. The answer to this question is that sometimes insiders are reasonably offended by cultural appropriation and sometimes they are not. It is easy to think of examples of subject appropriation which are reasonably taken to be offensive. Members of British Columbia’s First Nations were reasonably offended by the presence of Southwell’s Justice in the provincial legislature. The mural was in a public space which aboriginal people cannot be expected to avoid. In view of the history of the oppression of North American First 23 Feinberg (1985b), p. 36. 24 Shoemaker (2000), pp. 551ff. 148

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Nations, the representation of an aboriginal man submissive before a white judge is reasonably regarded as demeaning. Since such offence is reasonable, artists would act wrongly who painted murals with a subject matter similar to that of Justice in a similar location. Old Hollywood Westerns that represent Indians as cruel and duplicitous are certainly the source of reasonable offence. It is perfectly reasonable for people to be offended at being depicted as cruel, dim-witted, and duplicitous. It is wrong to produce such movies, even if one ought not to be prevented from doing so. While sometimes it is reasonable to be offended by cultural appropriation, on other occasions it is not. In order to see that this is so, we need to ask why people are offended by cultural appropriation. At least three sorts of cases can be identified. The first sort of offence is generated by instances of subject appropriation that are regarded as misrepresenting the cultures of insiders. In cases of this sort, the subject appropriation is derogatory and insulting and for this reason offensive. I will call this representation offence. Southwell’s Justice generates offence of this sort. The second sort of offence results from the belief that permission or consent to appropriate content or a subject ought to have been sought but was not. The insiders are offended because they have been slighted or exploited. This sort of offence may be called consent offence. This feeling can be intensified when the insiders have no legal recourse because their cultural property is not protected by copyright. Bringhurst’s retellings of Haida myths are offensive in this way. The third sort of offence is generated by works that are perceived as misusing something sacred or private. This sort of offence is really a feeling of violation and may be called violation offence. The use by white Australians of styles that aboriginal peoples regard as sacred would fall into this category. Let us begin by considering representation offence. As we have seen, it is sometimes urged that outsiders will likely misrepresent other cultures simply because they will probably lack the insights that members of the culture possess. Other people go further and hold that outsiders must misrepresent the lives and experience of insiders. Nevertheless, as I argued in Chapter 2, it is difficult to make the case that all subject appropriation involves derogatory or otherwise offensive misrepresentation. Whenever acts of subject appropriation do not result in the misrepresentation of other cultures, one possible ground for reasonable offence is removed. At least at most times and places, one cannot reasonably be offended by the mere fact that an outsider has represented some aspect of one’s culture, so long as the representation is not inaccurate. (Even 149

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an accurate representation may, however, be offensive at certain times and in certain places.) Earlier reflection on the extent of toleration of cultural appropriation is relevant in this context. The acceptance of an act of cultural appropriation by insiders is evidence that it is unreasonable to be offended by the act. This is particularly true when we are dealing with consent and violation offence. It is unreasonable for someone to be offended by appropriation of subject or content when such appropriation is widely tolerated by members of one’s culture. In such a case, one cannot say that cultural appropriation violates norms of conduct accepted within one’s community. For example, violation offence is an unreasonable response to subject appropriation in the novels of Hillerman. As we have seen these novels are widely accepted by the Navajo (Dineh) nation. (The fact that Hillerman received the Special Friend of the Dineh award is also some evidence that not all representation offence is reasonable. This award is evidence that outsiders will not always misrepresent the lives of insiders.) The example just given is one of subject appropriation. One could also be unreasonably offended by certain instances of content appropriation when these are widely approved by one’s community. One would be unreasonably offended by the use of styles characteristic of one’s culture when no one else in the culture objects to outsiders using the style and none of one’s culture’s norms are violated by style appropriation. Consent offence is the most difficult to adjudicate. It will often not be clear when an outsider has received appropriate consent for the use of insiders’ cultural products. It may just not be clear who within a culture has the authority to authorize the use of certain stories or styles. Moreover coercive relations between minority and dominant cultures can give rise to doubt about whether any consent is freely given. The situation is complicated by the fact that a failure to receive consent to use certain cultural products could cause harm as well as profound offence. Certain unauthorized uses of content can constitute violation of moral if not legal rights and this is harm. Nevertheless, it seems clear that outsiders can receive proper authorization to use content developed by insiders. Whenever this is the case no harm has been done and violation offence is unreasonable. All of this discussion of reasonable offence should not be taken to override what I have previously said. Even when insiders are reasonably offended by acts of cultural appropriation, the acts may not be wrong. Considerations of social value, freedom of expression, time and place, 150

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and so on may lead to the conclusion that, even when reasonably taken to be profoundly offensive, an act of cultural appropriation is not, on balance, wrong. Complaints about offensive cultural appropriation are common and deserve to be taken seriously. It is easy to sympathize with the offended parties, especially when they are members of a minority culture which has been the victim of countless other affronts and serious harm. Nevertheless, only in quite specific circumstances are acts of offensive cultural appropriation wrong.

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Conclusion: Responding to Cultural Appropriation

Summing Up This essay has two main conclusions. The first is that cultural appropriation is aesthetically successful more often than we are often led to believe. Artists who appropriate content, styles, or motifs do not need to worry that their works will necessarily be inauthentic or otherwise aesthetically flawed. The second is that cultural appropriation is wrongfully harmful or offensive less often than some people suggest. Certainly, some object appropriation is theft, but content appropriation is another matter. Artists from almost every culture are constantly borrowing styles, stories, motifs, and other content from cultures other than their own but this borrowing is only rarely wrongfully harmful. Sometimes this borrowing is offensive, but even so most of the time artists do not act wrongly so long as they observe appropriate time and place restrictions. Some people will find my conclusions objectionable on the ground (which I acknowledged at the outset of this essay) that appropriation from indigenous cultures is common and these cultures are often terribly disadvantaged. This oppression is deplorable but the appropriation of artistic content has contributed comparatively little to the oppression of indigenous peoples. When indigenous cultures have been robbed of cultural treasures, restitution ought, of course, to be made. When any culture is deprived of works of art sufficiently valuable to the culture then, no matter how they were appropriated, they ought to be returned. Most frequently the appropriation of content has merely added insult to injury and no one, as I have said, has a right not to be offended. 152

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As is the case with appropriation from indigenous cultures, appropriation from non-indigenous minority cultures has also put cultural appropriation in a bad light. I have talked about appropriation from African-American culture but many other minority cultures could be mentioned. Again I am sympathetic to the members of these cultures, but the source of most of their grievances is not cultural appropriation. Rather racism, xenophobia, religious intolerance, and other forms of bigotry are to blame. Cultural appropriation in the sphere of the arts has contributed very little to the state in which disadvantaged minorities find themselves. On the contrary, some cultural appropriation has done more good than harm to the cultures from which content has been taken. Think, for example, of the subject appropriation in Harper Lee’s To Kill a Mockingbird (1960). Recall that even Amiri Baraka allows that the appropriation of jazz by Europeans displayed African-American culture in a favorable light. I have noted that subject appropriation can (when it distorts a culture) cause harm. When the misrepresented culture is a disadvantaged indigenous or minority culture, the harm could be serious. Artists who cause this harm act wrongly. As I have argued, however, there is no reason to believe that all subject appropriation involves misrepresentation and good reason to believe that artists can, by taking other cultures as their subjects, create works of art with a high degree of aesthetic value. Moreover, these works can benefit insiders in a variety of ways (including the benefits that accrue from the contemplation of works of high aesthetic value). I recognize that, in the contemporary world, a strong case can be made for saying many cultures are under threat. Many of these are minority and indigenous cultures, but even the distinctiveness of large-scale European and Asian cultures is arguably threatened. This threat does not come from artists who engage in cultural appropriation. Assimilation is the main threat. Cultural appropriation endangers a culture, not when others borrow from it, but when its members borrow too extensively from others. Or, as is sometimes the case, language, beliefs, and tastes are imposed on a culture from without. This imposition typically does not come from artists who engage in cultural appropriation. Rather, it comes from corporations such as Disney and Sony that have made culture a commodity. (Some artists are complicit with these corporations, but these are not necessarily or even often artists who engage in cultural appropriation.) In this essay I hoped to exonerate most artists who engage in cultural appropriation. My intention has not been to act as an apologist for globalization. 153

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Supporting Minority Artists Given that indigenous and non-indigenous minorities are disadvantaged, there remains a question about whether some public policy affecting the arts is part of the appropriate response to this fact. Only a very few people have advocated censorship of work that involves subject or content appropriation. This essay may be seen, in part, as an extended argument against censorship of artistic activity. Even the immorality of some acts of subject appropriation would not justify censorship. In a free and democratic society, some immoral actions simply have to be tolerated. Perhaps, however, less draconian measures ought to be adopted. One understands and sympathizes with cultures from which content has been appropriated, particularly when these are economically disadvantaged indigenous cultures and other minority cultures. It is easy to believe that societies are justified in taking steps to protect the interests of these disadvantaged cultures. Perhaps societies are obligated to do so. Fortunately the interests of insiders can be promoted without recognizing property rights where they do not exist and without restricting artistic creativity. One possibility is the encouragement of artists from minority cultures. A model of this sort of measure is provided by the Canada Council for the Arts. In the early 1990s, the Canada Council considered (but did not adopt) a set of guidelines that were aimed at restricting cultural appropriation.1 Had these guidelines been adopted, the Council would have declined to fund any work that would result in subject appropriation. In the end the Council did not adopt these guidelines. I believe that this was wise. No agency ought to adopt a blanket refusal to fund works that address cultures other than that of the applicants. Instead, the Council adopted a policy of supporting minority artists, particularly those from aboriginal cultures. At present, the Council has seven programs that support aboriginal artists. These include programs that support native writers, dance companies, and visual artists. The film Atanarjuat was produced with the assistance of a grant from one of these programs. There are other ways to support artists from minority cultures. Insiders can take advantage of the fact that the art-buying public has a very strong preference for artworks that are (in the sense identified in Chapter 2) provenance authentic. That is, when collectors buy, for example, 1

Canada Council (1992).

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a rarrk-style painting they want it to be by a member of an aboriginal culture. It is possible to take advantage of this preference by making it clear that certain works are (and others are not) provenance authentic. The (Australian) National Indigenous Arts Advocacy Association introduced (in November 1999) a good mechanism for protecting insiders (and art collectors) from harm without asserting indefensible claims to ownership of styles. Artists who demonstrate that they are of aboriginal or Torres Strait Islander origin are entitled to mark their works with a label of authenticity. Similarly, the United States Indian Arts and Crafts Board has developed a certificate of authenticity. Items bearing the certificate are warranted to have been produced by a member of a recognized Indian group. In Canada, the federal government has developed a tag that is designed to identify artworks as genuine Inuit products. The United States government has adopted another strategy for protecting the interests of indigenous artists. The Indian Arts and Crafts Act of 1990 made it illegal to market any product as Indian unless it was produced by a member of an Indian group recognized by the United States government. This legislation may not be perfect. Sometimes there has been controversy about who may represent himself as Indian. Still this truth-in-advertising law is a significant way to protect the interests of indigenous artists. United States Code, Title 25, Chapter 7a, Section 305e, adopts a different strategy for the protection of indigenous cultures. This legislation introduces civil penalties for those who falsely represent works of art (and other items) as the product of an indigenous person. It states that Indians and Indian tribes and Indian art and crafts organizations may “in a civil action in a court of competent jurisdiction, bring an action against a person who, directly or indirectly, offers or displays for sale or sells a good . . . in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization.” This sort of legislation is not without its difficulties. Again, there has been controversy about who counts as an Indian and who ought to determine who is Indian. Still, this legislation provides a good way to protect the interests of members of indigenous American cultures (and the art-buying public) without suggesting that these cultures have property rights that they do not have. The United States legislation also has the advantage of not placing restrictions on the creativity of non-indigenous artists.

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These laws are not perfect for a number of reasons. In Canada, certain unscrupulous manufacturers of faux Inuit art (sometimes called fakelore), have adopted tags that resemble ones with the official symbol of provenance authenticity.2 Other manufacturers have adopted the practice of attaching tags with what appears to be the signature of an artist with an indigenous person’s name. As I was revising this conclusion, I passed through Tucson airport and saw some souvenirs labeled “Authentic Navajo Sand Paintings.” I doubt very much that any Navajo had anything to do with them. Perhaps new labeling laws are needed. Existing laws restrict the use of certain identifiers to indigenous artists. Alternative laws could require artists and manufacturers of pieces that appear to be of indigenous origin clearly to indicate that they are not. Manufactures of margarine are required to label their product accurately. A label that suggested that the product is butter would be considered fraudulent. Arguably indigenous artists deserve legal protection as much as dairy farmers do. I foresee trouble with such a proposal. It could be difficult to determine whether or not some artwork is in the style of an indigenous culture. Think again of the difficulty determining the styles of Kierkegaard’s Mood, Red Table Cloth, and Red Square No. 2. Still, it is worth exploring labeling regulations that will protect the interests of indigenous and other minority artists. The primary justification for programs supporting minority artists and defending their rights is provided by considerations of distributive justice. In particular, the justification is that members of certain cultures are disadvantaged relative to other members of a society or that outsiders are unfairly profiting at the expense of members of the culture. From an aesthetic point of view, it does not much matter who produces works in a given style or genre. As far as aesthetics is concerned, it would not matter if every artist in Haida Gwaii started producing abstract expressionist paintings or historically informed performances of baroque music. At any rate, it would not matter so long as someone else was keeping alive the vital artistic styles of the Haida. Here I assume that diversity of artistic styles is an aesthetic good. The aesthetic reason to support indigenous artists in the pursuit of their native arts (rather than other genres) is that, in the absence of others who wish to practice indigenous arts, this is the best way to encourage diversity of artistic styles. 2

Scott (1997), p. 19.

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Envoy In Chapter 1 of this essay I signaled that a goal of this book was to defend responsible cultural appropriation of content. My sincere belief is that this sort of appropriation can be responsible for opening up avenues of communication between cultures. In a world where cultures are still in conflict, arguably the world needs more content appropriation, not less. Artists who appropriate from other cultures, and the audiences of these artists, often come to have a greater appreciation of the value of other ways of living. I also believe that more and better subject appropriation would also contribute to understanding between cultures. Aesthetic reasons can also be given for valuing and defending cultural appropriation. Salman Rushdie gives a nice summation of one of these reasons. He has written of his novel The Satanic Verses that it was a celebration of “hybridity, impurity, intermingling, the transformation that comes of new and unexpected combinations of human beings, cultures, ideas, politics, movies, songs. . . . Mélange, hotchpotch, a bit of this and a bit of that is how newness enters the world.”3 At its best, the same can be said for any act of cultural appropriation, particularly the appropriation of styles, subject matters, and motifs. Even acts of object appropriation can be defended on these grounds. The transfer of objects can lead to the transfer and mingling of styles and motifs. Picasso would not have painted anything like Les Demoiselles d’Avignon had he not seen the African carvings displayed at the Palais du Tracadéro in 1907. Appropriation and cross-fertilization have always been important to the arts but in the contemporary world they have perhaps assumed a new importance. Many long-established traditions of artistic endeavor (including, arguably, the classical tradition of Western music) have been played out. Perhaps only through grafting of elements from other cultures can these traditions be revivified and made the source of valuable new ideas. (Newness is not a good in itself, but without new things there are no good new things.) No one stands to gain from the practice of aesthetic apartheid. Grafting from one culture’s traditions to another’s is possible if and only if something is common to the two cultures. Fortunately, this is always the case: everyone shares in a common humanity. In this context it is worth remembering the words of a famous ancient practitioner of cultural appropriation. In the works of Terence we find several layers of 3

Rushdie (1991), p. 394. 157

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cultural appropriation. He was brought to Rome as a slave from Carthage so he was an outsider relative to Roman culture which he represented and whose forms he employed. At the same time he appropriated from Greek plays in producing his own Latin works. In one of these plays, a character (Chremes, in The Self-Tormentor) observes that “Homo sum: humani nil a me alienum puto.” (“I am human: nothing human is alien to me.”) Kwame Anthony Appiah calls this the golden rule of cosmopolitanism.4 (‘Cosmopolitanism’ is Appiah’s term for the view that we ought to recognize and celebrate the huge common ground that all humans share, regardless of their culture.) This essay is both based on the assumption of Appiah’s cosmopolitanism and an attempt to lay some of the aesthetic and ethical groundwork for increased cosmopolitanism. Given that cultural appropriation can have salutary results, I am inclined to side with R. G. Collingwood. He wrote that an artist “who can be annoyed with another for stealing his ideas must be pretty poor in ideas, as well as much less concerned for the intrinsic value of what ideas he has than for his own reputation.” Collingwood added that, “this fooling about personal property must cease. Let painters and writers and musicians steal with both hands whatever they can use, wherever they can find it.”5 I would only add two caveats. The first is that fooling about cultural property must cease too. The second is that, in helping themselves to ideas from other cultures, artists ought to do so with respect and politeness. Oh, and no one should steal anyone’s (or any culture’s) tangible artworks.

4 5

Appiah (2006a), p. 111. Collingwood (1938), p. 320.

158

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165

Index

Index

aboriginal Australian art, 7, 17, 23, 26, 35, 39–40, 47, 67, 74–6, 81–5, 110, 119–22, 120–5, 133–4, 142–3, 145–7, 149, 155 access principle, 99 aesthetic handicap thesis, 33–4, 37, 41, 44 aesthetic properties, 3, 33–4, 41–2, 44, 53–5, 61–2 Alexie, Sherman, ix, 116, 118 Appiah, Kwame Anthony, 11–12, 158 archaeological finds, 2–3, 65, 67, 71–2, 101 art, definition of, 3–4 artistic commons, 66, 84, 125 artistic elements, 4, 22, 25, 31, 66, 74, 78, 80–5, 87–8, 101, 113, 119–20, 124 assimilation argument, 119–20 Atanarjuat (The Fast Runner), 117, 154 Australia Council, 35, 83 authenticity, 27, 39, 44–55, 60–2, 154–6 Bach, Johann Sebastian, 48, 51, 79 Baraka, Amiri, 20, 34–7, 111, 153 Battiste, Marie, 74 Beamish, Ray, 39–40 166

Benin bronzes, 19–21 Bestman, Martin A., 45–6, 49 Borges, Jorge Luis, 41 Bringhurst, Robert, 1, 6, 80, 133, 140–1, 149 Brown, Michael F., 83 Browning, Janisse, 56 Bulun Bulun and Anor v. R & T Textiles, 76, 79, 84 Canada Council, 7, 154 Carroll, Nöel, 108 Carter, Asa, 61–2 Cavell, Stanley, 57 China, xiii, 32, 51, 90–1 Clapton, Eric, 7, 13, 58, 110 Coleman, Elizabeth Burns, 120–5 Conrad, Joseph, 7, 13, 58, 110 content appropriation, 6, 20, 25, 34, 36, 63, 118, 134 innovative and non-innovative, 36–7, 43, 47–8, 52 Coombe, Rosemary J., 7, 115 copyright, 21, 23 29, 67, 79, 81–5, 95–7, 101–2, 149 cultural appropriation, definition of, 4–9, 21 cultural experience argument, 34–41, 55–6, 58–9

Index

cultural significance principle, 91–3, 101 culture, definition of, 9–18 Danto, Arthur, 53 Davies, Stephen, 14, 138 Disney, 1, 21, 24, 132, 153 Drabble, Margaret, 31, 139 Durack, Elizabeth, 40 Dutton, Denis, 11 Elgin Marbles; see Parthenon Marbles Feinberg, Joel, xi, 26, 130, 135–6, 144–5, 148 First Nations of North America, 6, 11, 20, 24, 30, 67–9, 74–6, 82, 84, 91, 93, 108, 115–18, 122, 131–3, 143, 146, 148 Flatejarbók, 23, 67, 90 Gaut, Berys, 108 Goddard, Barbara, 117–18 Goodman, Nelson, 33, 41, 44, 53 Gracyk, Theodore, 29, 119 Gray, Stephen, 7, 85 Haley, Susan, xiii, 109, 117 Hancock, Herbie, 28, 31 Handel, George Frederic, 14, 38, 48–9, 55 harm, defined, 130 Henderson, James (Sa’ke’j) Youngblood, 74 Hillerman, Tony, 1, 7–8, 57, 150 hindewhu, 28, 93 Hurka, Thomas, x, 56, 118

Jones, LeRoi; see Baraka, Amiri Jungen, Brian, 30–1, 84 Jyllands-Posten cartoons, 131, 133, 135, 142 Keeshig-Tobias, Lenore, 20, 115, 117 Kennick, W. E., 45 Kinsella, W. P., 1, 20, 57, 116, 132, 145 Kipling, Rudyard, 7, 58, 110 Kivy, Peter, 47 Koons, Jeff, 4, 96–7 Kurosawa, Akira, 6, 30 Kymlicka, Will, 24, 79 Levine, Sherri, 4, 95–6 Locke, John, 77 Mabo v. Queensland, 85 Maori, 38, 81, 114 Marsalis, Delfeayo, 35 Mataatua Declaration, 74 Morphy, Howard, 81 motif appropriation, 6, 37, 52, 111, 113, 152, 157 Mozart, Wolfgang Amadeus, 14, 31 object appropriation, 5–6, 18–19, 63, 101–2, 104, 133, 152, 157 offense, profound, defined, 129–30 Ofili, Chris, 141–2 Ondaatje, Michael, 13, 59

identity argument, 85–8 integrity principle, 100

Parthenon Marbles, 1, 5–6, 23, 69, 73, 103 Petyarre, Kathleen, 39–40 Picasso, Pablo, 1, 6, 31, 36–7, 52 preservation principle, 98 privacy, 125–8 proprietary principle, 101

Janke, Terri, 110 jazz and blues, 1, 6–7, 20–1, 35–9, 43, 50, 55, 77, 111, 140, 153

Radford, Colin, 44 rescue argument, 102–5 Rushdie, Salman, 59–60, 144–5, 157 167

Index

Said, Edward, 58 Sax, Joseph, 65 Serrano, Andres, 26, 138, 141–2, 144 Shakespeare, William, 29–30, 81, 108, 137 Shelby, Tommie, 94, 111 Simon, Paul, 1, 16, 31, 116, 138 Smith, Alexander McCall, 7, 16 Southwell, George, 131–2, 143–4, 148–9 style appropriation, 6, 149–50 subject appropriation, 7–9, 16, 24–6, 29, 31, 33–4, 55–7, 60, 107–9, 114–16, 118, 120, 125, 127–8,

168

131–4, 137, 141, 143, 148–51, 153–4, 157 subsistence digging, 98 Taylor, Charles, 23 traditional knowledge, 64, 78–9 van Gogh, Theo, 133 voice appropriation; see subject appropriation Walton, Kendall, 42 Wittgenstein, Ludwig, 14–15 Zuni War Gods, 19–20, 22, 63, 71, 98