Arts and Crafts Brand Protection –
An Indigenous Perspective
Image Credit: “We are Still Here” by Raymond Nordwall
Brand Protection Professional
Policy Advisor and Consultant
Native American arts and crafts, in all its various forms and expressions, faces many intellectual property (IP) rights challenges in the marketplace. The history of Native American art is a unique story that has unfolded over thousands of years, but the expansion of e-commerce retail has created both opportunities and challenges for Native artists. As e-commerce expands worldwide, it is increasingly necessary for artists of all mediums to engage in e-commerce to sell their works. With opportunity comes significant vulnerability to IP rights infringement, including copyright or trademark infringement, and counterfeit products. The negative impacts of infringement on Native artists are often severe since many of the artists rely on their works as a sole source of income, and many times their works are limited in number. Fortunately, sole proprietors and small/medium-sized enterprises (SMEs) have become a focus of the brand protection professional community, resulting in more practical brand protection solutions for those artists with fewer resources and a lack of expertise in protecting their IP rights.
The History of Native American Arts and Crafts
From ancient barter practices to online marketplaces, art in all forms has been copied and counterfeited with varying degrees of consequence and harm. Indigenous communities of this land created their works with a sense of utility and quality, rather than purely an eye for detail. For the First Peoples of the North American Continent, “art” was simply not identified as such and most Native languages don’t even have a word that translates the notion. Through the generations, items crafted for utility and/or sacred purpose took on artistic and aesthetic beauty in a variety of forms, including basketry, beadwork, quillwork, paintings, ceramics, jewelry, and sculpture. Those art forms vary from region to region, tribe to tribe, and most often the origin can immediately be identified by materials used, the design and pattern. Simple utility gave way to cultural art forms that represent something both individual, yet respectful of tradition and heritage, and the non-Native community took notice. As can be imagined, selling, trading, or bartering their beautiful, unique art became a pillar of Native American economies. A pattern of exploitation evolved as quickly as the marketplace grew, and Native artists were taken advantage of by unscrupulous traders and businesspeople to such a degree it was difficult to care for and provide the basic needs for their families. Despite the hardships, Native artists continue to rely on their ability to create art which is often their sole source of income.
Opportunities and Challenges Ahead for Native Artists
There are significant opportunities and challenges ahead for Native artists, with expanded retail markets and some infringement risks that often come with additional market exposure. The growth of retail e-commerce sales continues unabated. In fact, the coronavirus pandemic appears to have permanently altered the way in which we shop for goods and services. Retail e-commerce sales amounted to approximately $5.2 trillion U.S. dollars worldwide. This figure is forecast to grow by 56 percent over the next years, reaching about $8.1 trillion dollars by 2026 (Statista, 2022). While e-commerce sales still only represent a fraction of overall retail sales each year, it is a growing segment that nearly all IP creators must embrace in some way. SMEs Native art enterprises, many of which are sole proprietors, can now reach a vast retail shopping audience instead of relying on shoppers to be physically present within the marketplace. Given the remoteness of some of the Tribal Nations, this allows Native artists to reach exponentially more potential consumers of their works. Consumer habits are also changing. While shoppers have historically preferred to touch merchandise considered for purchase, the pandemic has given rise to greater acceptance of buyers completing transactions from a distance, which bodes well for Native artists looking to sell their works on the online environment (Repko and Thomas, 2022).
While there has been undeniable growth of consumers in the digital environment, there are also exciting developments ahead for the expansion of Tribal artists’ access to the internet, allowing artists and craft makers engagement in the increasingly vital e-commerce activities. The National Telecommunications and Information Administration is responsible for administering the Tribal Broadband Connectivity Program, a $980 million program “directed to tribal governments to be used for broadband deployment on tribal lands, as well as for telehealth, distance learning, broadband affordability, and digital inclusion” (BroadbandUSA, 2022). A successful e-commerce presence for any artisan requires reliable access to the digital world. That access is initially necessary to establish and maintain a presence across a variety of e-commerce channels, whether that be through e-commerce platforms, e-commerce websites, or social media marketplaces. Additionally, it is imperative for any artist with a presence in e-commerce to maintain vigilance over the monitoring and protection of their hard-earned intellectual property rights in that digital environment. The deployment of reliable broadband access is always great for the consumer, but it is equally important for the Native artist looking to expand market access beyond the physical marketplaces.
While there are growing opportunities for tribal artists in the e-commerce space, these opportunities are not without significant challenges for the artists, craft makers, and content creators. Like many other SME enterprises facing brand protection challenges, the Native American community also faces a cumbersome regulatory and enforcement landscape when it comes to protecting intellectual property rights. The Indian Arts and Crafts Act (IACA) of 1935 is a “truth-in-advertising law which prohibits misrepresentation in marketing of American Indian or Alaska Native arts and crafts products within the United States”. This Act, and subsequent amendments in 1990, 2000, and 2010, make it illegal to “offer or display for sale, or sell, any art or craft product in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States” (IACA). While the IACA is well-known within the Native American arts and crafts community, the effectiveness of the IACA has been often limited to only the most significant violations of the Act. This is predictable because the original framers of the statute, and subsequent amendments, could have never anticipated the eventual development of the modern e-commerce landscape. After all, two of the world’s largest e-commerce platforms were not yet established at the time of the initial act in 1935 or even by the first amendment in 1990 (Amazon in 1994 and Alibaba in 1999). Enforcement of the IACA is also complicated by a lack of criminal justice resources, a problem which negatively impacts many artisans regardless of size or products, but the lack of enforcement resources disproportionately affects the smallest enterprises and sole proprietors, as they typically lack the resources to support robust civil enforcement of their IP rights.
One of the most significant challenges for many Native artists comes from the inherent exclusivity of their artworks, in part due to limited production numbers. Like many of their non-Native SME art counterparts, production of their works is often limited, and that limited production is what makes Native artists particularly vulnerable to the negative impacts from intellectual property infringement. In recent times, traditional and contemporary Native art has become highly sought after by collectors and the public. With the proliferation of the online marketplace, Native artists are once again being exploited, this time by brand and trademark violations including rampant counterfeit operations. With the amazing surge of Native American visibility in the film and television industry, Native American art and fashion is becoming more popular than ever. Liz Wallace, a Native American (Diné, Nisenan and Washoe) jeweler offered in a recent New York Times article, “the people who produce counterfeits of Native American jewelry often are hurting some of the most vulnerable communities in the country”(Conoway, 2022).
Some Practical Brand Protection Solutions for the Native Art Community
When it comes to protecting their IP in the marketplace, Native American artists, craft makers, and content creators are not alone in their struggles as sole proprietors and SMEs. The brand protection professional community has long recognized the challenges faced by these brand owners.
Some recommendations and best practices for sole proprietors and SME brand owners in the arts and crafts sector.
Native artists have a rich history, and those Native-produced artistic products and crafts have become increasingly attractive to consumers worldwide. Like many SMEs, the Native brand owner artisans are poised to leverage a rapidly growing e-commerce landscape. The Native American art and craft community is also likely to benefit from the expansion of broadband internet access throughout the Tribal Nations, allowing Tribally owned sole proprietors and SME enterprises to better manage an e-commerce retail presence. However, with increased presence in e-commerce comes additional IP infringement risks, and a robust e-commerce presence will also require diligent brand protection efforts to ensure the benefits of these artistic works remain with the creators of these works and are not lost to product counterfeiters and other unscrupulous entities seeking to take advantage of Tribal produced products. Fortunately, many of the best defenses within e-commerce are cost-effective and straightforward solutions that can be employed by a wide range of sole proprietor IP owners and smaller enterprises.
About the Authors
THE BRAND PROTECTION PROFESSIONAL | DECEMBER 2022 | VOLUME 7 NUMBER 4
2022 COPYRIGHT MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES