Intellectual Property Law and the Globalization of Indigenous Cultural Expressions: Māori Tattoo and the Whitmill versus Warner Bros. Case

Abstract

From the time of British colonial settlement, innumerable taonga (treasures) have been appropriated from the indigenous Māori population of Aotearoa/New Zealand, from cloaks, weapons, carvings and musical instruments to the practices and products of tā moko ( Māori tattoo). This article focuses on the topic of cultural appropriation, homing in on a recent legal case, Whitmill v. Warner Bros., in which an artist sued Warner Bros. in a US court for pirating a ‘ Māori-inspired’ tattoo created for Mike Tyson, so as to tease out the conflicts between intellectual property (IP, specifically copyright) laws and norms on one hand, and international frameworks for human and cultural rights on the other. It examines the implications of the case for tā moko as an indigenous artistic tradition, and the tension between human/artistic and cultural rights, before discussing potential remedial strategies, drawing on the findings of the Wai 262 (Waitangi Tribunal) report into claims concerning New Zealand law and policy affecting Māori culture and identity. Theoretically, it employs Manuel DeLanda’s assemblage theory as a framework for analysis, the benefit of DeLanda’s work being that it provides a novel approach circumventing the usual ontological terms of intellectual property laws and norms, which tend towards a kind of methodological individualism or micro-reductionism.