Cultural Sensitivity vs. Intellectual Property Rights

Nike Pulls Line Inspired by Samoan Tattoos
 YAHOO - "Nike halted production on a line of sportswear on Wednesday after an outcry that the designs were culturally insensitive. The women's running tights, bodysuit, and sports bra in the Nike Pro Tattoo Tech line were decorated with a pattern based on Samoan tattoos called pe'a, which are traditionally reserved for men."

Nike running tights using Samoan tattoo designs 
This is an interesting issue which gives rise to intellectual property protection of Samoan native and cultural arts. The pe’a/tatau (traditional tattoo) is especially critical since it can get really complicated and controversial - if not tempestuous.  The relevant question is, will an ages-old pe’a tradition alone, be enough to secure and protect proprietary and intellectual property rights of the Samoans with regards to the designs?  Perhaps more importantly, is who owns the rights to the pe’a designs - the people or the tufuga ta tatau (tattooers/tattooists)?  Now, if the latter do, and decide to form a guild of their own  to secure the IP rights, can - and will - the people or government intervene? Then there will be questions about royalties - who gets what, and how much?

In some countries, the laws - governing intellectual property of native culture and arts - protect only the rights of the individual(s) and not  communities.  Hence, I can see the Samoan tufugas become adamant if not aggressive in fighting for the rights and ownership of their pe’a art; and lucrative paydays by companies like Nike will only strengthen their resolve.
Actually, there may already be some discussions in the pipeline - or on the back burner - of the above issues in Samoa. One thing is sure however, that is, this halted Nike venture will certainly get some people pushing and itching for a hastened resolution.  Imagine a tattooer’s cut from Nike sales of all the items in the tattoo sportswear line ...Wow!!  But then, imagine the present government - Stui and the gang - already cracking its proverbial whip or flexing its political muscle at Suluape and fellow artists in anticipation of such huge earning potential. We shall see!

Moreover, there’s the question of public domain. The fact that others have already exploited the tatau designs commercially - fabric prints, sports promotions, tattoo parlors, etc. - apparently without seeking any permission from anyone or worry about copyright infringement issues, means that the designs are, and should therefore be in the public domain. I think that Nike can therefore legally continue its tattoo design line based on that possibility. The criticisms and opposition in the name of culture obviously have to do with Nike being a giant moneymaker, hence a likely profiteer from the designs. Again, others already have done what Nike is trying to start, so I guess it’s the profit size that’s the real issue. With Samoa being late, negligent or even ignorant of intellectual property rights, she should at least start negotiating with the giant shoemaker for some royalties possibilities. Ia fai aku ai fo’i.

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