Intangibles, Appropriation, and Intellectual Property Law: The Problem(s) With Copyright for Native American Oral Traditions

Abstract

The question of how to address copyright's insufficiencies with respect to Native American creative production is at the center of an ongoing legal debate; however, more important is whether Native American oral forms should be protected by copyright. Although some late twentieth-century court decisions have opened the door for courts to consider including intangibles within intellectual property law, copyright is not the answer to the problem of protecting Native American oral traditions from appropriation. Expanding the scope of copyright to envelop Native American oral traditions is antithetical to the creation and function of these forms within their host communities and would do more harm than good.