50%(2)1 out of 2 people found this document helpful
This preview shows page 80 - 82 out of 104 pages.
360In many instances, indigenous peoples’ intangible cultural property interests would be 355.For a discussion of OutKast’s performance of “Hey Ya!” at the 2004 Grammy Awards, see Riley, supranote 51, at 70-72. 356.See, e.g., Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087 (8th Cir. 1998) (reviewing tribal court jurisdiction over claims that a brewing company’s unauthorized use of the “Crazy Horse” image in marketing of a malt liquor product violated a combination of federal and tribal laws governing intangible property).357.Seeinfranotes 383-389, 404-409, and accompanying text. 358.Moreover, the NCAA’s guidelines are promulgated by a private organization without authority to make laws that, at least as a formal matter, narrow the First Amendment’s free speech guarantees. We recognize, however, that the rule may raise concerns over the limitations on free speech in this context, even if not as a formal constitutional matter. Cf.Regan Smith, Note, Trademark Law and Free Speech: Protection for Scandalous and Disparaging Marks, 42 HARV.C.R.-C.L.L.REV. 451 (2007) (arguing that prohibitions on registering scandalous trademarks are unduly restrictive of free speech). 359.SeeRiley, supranote 200, at 175-77 (detailing the theft of the indigenous Ami’s “Song of Joy,” to which existing, applicable intellectual property laws should have applied but did not protect the actual audio recording of the song). 360.SeeHarry & Kanehe, supranote 57.
RILEY PREOP 5/27/20095:47:27PM the yale law journal118:1022 2009 1102 better protected simply by a more uniform and nondiscriminatory application of existing laws. At the same time, we do not suggest that critics’ concerns are always unfounded, or that indigenous peoples’ efforts to reclaim or safeguard their intangible cultural property must always prevail against competing claims. Consider, for example, reports that Aboriginal leaders in Australia lodged a writ in the High Court to prevent the Commonwealth from using depictions of the kangaroo and the emu on Australia’s coat of arms, on any state property, or in any state publication.361Because Aborigines consider these animals to be sacred, they perceive Australia’s use of them in promoting the Australian state to be an abomination. Their claims do not include any contention, however, that they have had any role in the creation of the displayed designs, or even that they have employed traditional knowledge to ensure the perpetuation of the animal species. Thus, even where we may sympathize with particular claims, we do not assert that the stewardship model militates in favor of indigenous peoples always prevailing in obtaining their desired legal protection. In some cases, such as this one, stewardship may in fact necessitate that the scale tip against indigenous claims.