The Politics of Cultural Appropriation Claims and Law Reform

Abstract

This thesis is about cultural appropriation, copyright law, and tattoos. It explores in depth the argument for law reform to prevent the cultural appropriation of Māori and Aboriginal and Torres Strait Islander culture, with a particular focus on the protection of cultural imagery and arts styles. First, the thesis unpacks the nature of cultural appropriation claims as possessive claims, identity claims, and performative utterances. Second, it analyses the ambiguities and contradictions that sit behind cultural appropriation claims, as identified through law reform scholarship and an empirical study of how law interacts with and governs cultural life and artistic practice, with respect to tattoo subculture. Third, it teases out the political stakes of alleging cultural appropriation through a close consideration of historical constructions of cultural difference and intercultural dealings in tattoo in the Pacific region.

Three analytical frameworks of performativity , law and society , and desire for the Other help frame the inquiry. Doctrinal analysis is utilised to explore private property claims over imagery and arts styles, and contextualise discussion of legal exclusion and inclusion of Indigenous peoples and their artforms. Fieldwork exposes how meaning is made outside of the formal legal frame in the everyday lives of artists, and the dynamism and contest that marks cultural production. Historical analysis provides a deeper understanding of cultural appropriation allegations as performances that construct a very specific relationship between appropriation and the colonial past.

In exploring the intersection of cultural appropriation and law from above, from below, and in historical context this thesis exposes the dynamism of cultural appropriation claims, the challenges of transplanting new legal norms within artistic subcultures, and the politics that is engaged, resisted, and produced by claims of cultural appropriation in the domain of copyright law. Ultimately, it is argued that the justification for, and utility of, legal intervention in local sites that already order creativity, appropriation, and conflict resolution in the shadow of the law is neither as straightforward nor as persuasive as is assumed in reform scholarship.