Summer Update #2: Intellectual Property and the Edward S. Curtis Collections

This is the second in a series of posts discussing the pilot project currently underway as part of our Mellon planning grant. Undergraduate research fellow and Scripps student, Amy Borsuk offers us an overview of the intellectual property rights research that we discovered was essential to a responsible use of the Curtis photographs.

We began the Edward S Curtis pilot project excited by the possibilities of work with public domain resources. We quickly learned, however, that we needed to better understand the ways in which Curtis’ photography has been established as legal entities that are subject to United States intellectual property laws. Just as any published book is owned and copyrighted by the author or any trademarked slogan requires paying a royalty for usage, Curtis’ photographs of Native Americans are a form of intellectual property. Their existence in public domain draws attention to the insufficiencies of intellectual property law in protecting property that does not specifically fit the legal qualifications for copyright, trademark or patent. Specifically, Curtis’ photos are within public domain, and therefore unprotected by copyright, trademark or patent. This means that they can be legally circulated for use by anyone. This free usage is promoted and encouraged by digital media and networks, from museum digital archives to social media sites. There are many consequences to this, both positive and negative, that this project aims to highlight and discuss.

Edward S. Curtis

One of the main negative consequences of the fact that Curtis’ photos are in public domain is that the photos are often used in ways that are offensive or inappropriate according to the tribe or nation that is being represented in the photo. Many Native American cultures consider the sanctity of important objects, individuals or beings to be present even in replications of the object. This means that photos depicting sacred objects or beings are as sacred as the object or being itself, and the photo needs to be protected from inappropriate gazes.

Graduate fellow Ulia Gosart is currently researching methods that are being developed and discussed by Native American tribes and nations, often in conjunction with the US government that could be used in order to regulate the exposure of sacred photographs. The goal of the research, and any legal reform that could arise from this research and work, is to give Native Americans legal agency and representation within the US legal system, whereas now the offences made against Native American tribes in terms of misuse of property often falls outside of legal protection.

Ulia’s research and work on this Scalar project aims to clarify the ways in which Native Americans are insufficiently represented within the US legal system, and the procedure that can and should be adopted for anyone who wants to use Native American intellectual property. The idea is to encourage a system that promotes direct discussion between Native American individuals and institutions, and governing bodies and individuals outside of the tribes who want to use Native American property correctly and respectfully.

All of these intricate issues have been synthesized in a brief essay written for both the Scalar project and the Scripps College Core I program, for all first year Scripps students. This year’s theme for the Core I lecture and seminar series is violence. Curtis’ photographs are being used as a primary source document to prompt discussions in seminar on violence towards Native Americans and the ways in which Native Americans and their cultural heritages have been taken away from them. The aim of the essay is to give first-year students a foundational understanding of the legal issues surrounding Native American rights.

This focus on a fair and empowering representation of Native Americans through the regulation of their property also contributes to one of the main goals of the Curtis pilot project, which is to examine the ways in which digital humanities can shift focus within discourse on Curtis away from him and back onto the subjects themselves: the Native Americans in the photos.

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