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The Fallacy Of Cultural Property And Its Misapplication To Maori Imagery Replies To Criticisms

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Czech (and later, New Zealand) artist, Gottfried Lindauer (1839 – 1926), was famous for his portraits. Included among these were portraits of the Maori people of New Zealand. These Maori portraits have been photographed, and the resulting photographs have long been placed into the public domain, where, by law, anybody can use them. Some artists at Fine Art America have done precisely this, by making the images available on shower curtains and other home decor items.

At least six different news stories at five different websites have emerged, championing the logic of cultural property by portraying Fine Art America as a practitioner of cultural misappropriation of the Maori images. Four of the five news stories name or quote the same individuals as authorities, in order to substantiate claims by people who express anger over such commercial uses. In most instances, the different news stories include the same authoritative quotes verbatim, as if originating from the same press release, submitted by the same contact person.

This leads me to recognize a calculated effort by one organization to blanket as many news agencies as possible with a sensationalized story of wrongdoing, in order to bestow special privileges to a particular group.

This appears to be targeted activism, fueled by hypersensitivity to cultural differences, intensified by a heightened focus on ancestry, and driven by a strong determination to preserve the purity of a select group of humanity, using the concept of intellectual property "appropriated" from British law. This promotional effort to place Fine Art America in a negative light "appropriates" the internet as a tool to do so – a tool for which major advances stemmed largely from US Department of Defense developments in the field of computer technology, to say nothing about the numerous contributions by countless unnamed individuals of many cultures before and after that.

The problem, then, is in using the concept of cultural property as a foregone conclusion, when the very concept itself seems very much open to question, let alone appropriate for an enlightened civilization to practice. The problem is also focusing offended feelings about specific images onto one art website that deals with many thousands of other images having nothing to do with the images under scrutiny.

Let’s take a look at some of the authoritative quotes put forth by the various news stories:

(1) People have to imagine it’s their grandparents. How would you feel if that was your grandparent that I was walking all over, that I was using as my shower curtain? It’s about rehumanizing it.

First, the images under scrutiny involve people many more generations removed than just grandparents – more like great, great, great grandparents, about whom many people have little knowledge and so very little to object to on the grounds supposed by the authority quoted here. Second, the entity under discussion is an IMAGE. It is NOT a live person. The image here is a two dimensional expression of a painter’s hand, copied by a camera. An actual person is far removed from being walked upon by feet or splashed upon by water. Third, where is the insult in walking on (or splashing water onto) functional items whose decorations we might find appealing?

If we can appreciate an image enough to accept it on our everyday items, then are we not showing a great deal of respect for such an image? If no, then the authority being quoted here has somehow determined that everyday items are lowly, dehumanizing things on their own, thus, polluters of images placed upon them. Where does the authority to make this judgment originate? This is not MY view, and I dare say that it is NOT the view of many other people either. Such a statement, then, seems extremely over-presumptive. If anything, dehumanization occurred when a dead image of a live person was painted by Gottfried Lindauer. There is nothing to "humanize" now, because it (the painting) was biologically dead to start with, and the subject who inspired the painting is biologically dead now.

If the quoted authority finds everyday objects dehumanizing, then I would suggest that this authority regard such a view as a very personal view, rather than trying to project a very personal view as the most common view. The authority being quoted certainly is entitled to the freedom to exercise this view in personal life, but not to preach it as a universal ethical law.

(2) . . . a level of arrogance and racism that came with the assumption that anyone had the right to use images as they chose without a thought for the meaning behind them.

People have been using images as decorations for the entire duration of human history, many times without any regard for the "meaning behind them". I would ask, "What meaning would people be expected to ascertain? Is everybody expected to ascertain the same meaning for the same image?"

Ask any artist this question, and you will get laughed at, because most artists understand that original meaning and viewer attraction to an image are often two separate phenomena. Any single image does NOT have a single universal meaning, and so the assumption about supposed arrogance and racism lacks logical foundation. If anything, the assumption that everybody should share the quoted authority’s sense of meaning for an image in question is arrogant. The charge of "racism" is simply misplaced, perhaps displaced anger over another, separate issue.

(3) Traditional Maori values honour the sanctity of cleansing and bathing.

In traditional cultural terms, in the context of tikanga Maori of Maori values around the sanctity of the body and the intimacy of the bathroom, to have an ancestor as a shower curtain is profoundly insulting.

My understanding of the English words appropriated here to explain traditional Maori values, then, leaves me completely perplexed. If cleansing and bathing are honorable, then how is incorporating a human image in these honorable acts insulting? If the bathroom is intimate, then how is incorporating a human image into an intimate space insulting? -- unless intimacy is somehow unclean, in which case this would be, yet again, ONE view of intimacy raised to the level of universal ethical law.

I dare say that uncounted millions of people feel zero insult regarding a human image on a shower curtain, whether it was an image of granny or an image of the Grim Reaper. People usually adorn their personal or intimate items with images that appeal to them. How is the appeal of an image on intimate objects not a compliment?

Sports fans put images of admired sports stars on their drinking cups, t-shirts, wall posters, and more. A rock star’s’ photo on a shower curtain would show no less admiration. To have a Maori chief’s image win out over a current pop star’s image on anything would seem to say something very positive about that Maori image. Is this really about respect or honor, then?

(4) He [a lawyer for three iwi in the Wai 262 Treaty claim over cultural and intellectual property rights] said descendants of those depicted in the artwork should write to Fine Art America explaining that the images on the shower curtains are offensive and done without consultation with Māori.

How does one "consult with" an entire culture? What official organization exactly represents the entire culture, and is this organization a true representative of every individual within the culture? Where are the precise boundaries of the culture to determine who the intellectual property owners are? Is someone who is half Maori and half French a qualified owner of such “cultural intellectual property”? Why would anyone just assume that any particular Maori cultural organization is THE organization with whom to "consult" before using imagery deemed public domain imagery by other official organizations? If I am so attuned to my ancestry that I know who they were at the dawn of history, then is it reasonable for me to expect somebody to consult me about using an image that represents this ancestor? How far back in time is a consultation required?

Such questions point to the extreme skepticism that I have regarding "cultural property" as a valid concept.

One of the errors that these news stories consistently make is to conflate all instances of using Maori images into the same offense, when very different offenses are under discussion. For example, one story speaks of a LIVING individual whose image was used without permission on home decor items. This, to me, seems like a clear violation of publicity rights, NOT anywhere near the same thing as using the image of a Maori chief, copied by a camera from a painting in the 1800's. Another example is the situation where a young Maori girl's image was snapped over the shoulder of another photographer who was the official photographer taking her photo, and this image was used on home decor items. Again, ... both a violation of publicity rights and using another photographer's set up to infringe on this photographer's work. ... NOT the same as using a battle scene involving the Maori from the 1800's. The error here is NOT distinguishing the time frames established by copyright laws to give people time in their own lives to use images of themselves, after which the images are most often placed into the public domain, so as not to hog image resources from creative use in the future.