COPYCATS
WHEN IMITATION IS NOT THE SINCEREST FORM OF FLATTERY
When imitation is not the sincerest form of flattery
Imagine working your entire life to carve out a career that depends upon your creative talents. You’ve honed skills that allow you to craft beautiful work, using techniques that took years to learn, some of which are particular to your heritage. You hustle to find shows and are constantly coming up with new pieces. Then imagine waking up one day to find that your work has been copied and is being sold by someone else as an original. For too many American Indian artists, this has become an unwelcome marker of their success. The imitation doesn’t feel like flattery, however. It feels like theft. A few years ago, Kiowa artist Keri Ataumbi, known for her exquisite conceptual jewelry, started to notice an uncomfortable pattern on her Facebook feed. A non-Native jeweler — one she had mentored no less — began posting copycat pieces a week or two after she did. At first Ataumbi wasn’t concerned, since the pieces being mimicked were simple, and Ataumbi acknowledges that she had taught the other jeweler a few techniques specifically to expand her skill set. Sometimes students replicate work to learn. “But then she started copying my narrative work, specifically a bracelet about Grandma Spider,” Ataumbi says, referring to an important figure in Kiowa stories. That is when she called the other jeweler out on social media and sent a letter tasking her to cease and desist. Three-time Indian Market Best of Show winner Jamie Okuma (Luiseño/ Shoshone-Bannock) creates mind-bogglingly intricate beadwork and dolls. In January her social media followers learned that a pair of beaded boots she had made for the Native Fashion Now exhibition had been reproduced for a custom “Pocahontas-inspired” doll. Though the doll’s boots were not beaded, their design and colors were the same as hers. In a public post, Okuma wrote, “This ‘Changing Winds Eden Blair’ doll, made by a company called Integrity Toys ... what a joke. This makes me sick. Never mind it was my design, time, story and heart that went into making these commissioned artworks for the Peabody Essex Museum.” Karen Kramer, the curator of Native Fashion Now, says that while it took a
few months, the Peabody Essex Museum did issue a cease-and-desist letter at the end of April 2019 and that Integrity Toys complied, removing the doll from its company website. “I felt strongly [that as an institution with means] we needed to support the artist and shut it down,” Kramer notes. While the doll is no longer on the company site, it can still be found on eBay — as can the boots, sometimes sold separately by private sellers. Jeweler Darryl Dean Begay (Navajo) makes bold, beautiful pieces cast in silver or gold that feature the iconic southwestern duo of coral and turquoise. One night his wife saw a silver and red coral cuff they had made on the QVC home shopping channel. The couple was shocked. The cuff was being used as a reference point to sell a bracelet that looked very much like — but was not identical to — theirs. Sure enough, in a segment posted to YouTube by QVC on August 9, 2014, Carolyn Pollack, an owner and designer for a New Mexico-based manufacturing company with a line called American West Jewelry, can be seen acknowledging that she had purchased the original cuff from an artist at Santa Fe Indian Market (though Begay is never named), noting that it was “extremely heavy” and “not adjustable” and was therefore less comfortable than the version she was selling. The original bracelet has a solid, sterling-silver cuff with a distinctive cast cuttlebone texture; an offset tufa-cast, turtle-shaped bezel; and a coral cabochon. The American West cuff replicates the cuttlebone texture but with pieces cut out. An offset turtle, with a slightly different red coral cabochon, is placed on top. In the beginning of the segment Pollack says, “So this is a new tradition for me, Lisa,” talking to the co-presenter. “Every August here on QVC we’re going to bring a reproduction of a cherished piece in my Native American, one-of-a-kind collection.” Begay claims that his wife, Rebecca, had been approached by Pollack to do a line with her company but had told her they were not interested. (Some artists from Indian Market have indeed worked with her to design pieces, which are then made by the company and sold on QVC or through the American West website.) He had been excited when Pollack purchased the bracelet, but when he saw the segment, “It was a really nasty feeling to see the work being copied like that.” When reached for comment, Bill Pollack, president and CEO of Relios, the parent company of American West, said, “We are looking into these claims. We have always strived to have strong and honest relationships with our artists and customers and would never intentionally deceive or not give proper credit. If we determine a mistake was made, we will move quickly to correct that situation and work to implement strategies to prevent any other issues. We sincerely hope, however, that nothing improper occurred because that would go against our culture and purpose.” Begay was not placated. “We as Native people have been used far too long,” he says. “Designs from Native people have been stolen and reproduced for the mainstream market, without proper consent, compensation, and acknowledgement. This is intellectual theft.” Navajo/Picuris Pueblo artist David Gaussoin has seen his work imitated so many times that he made a bracelet called Follow My Trax as an acknowledgment of his copycats. “It used to anger me and make me sad,” he says, “but over time I just had to accept that this is part of the game. My mom [artist Connie Tsosie Gaussoin] really helped me deal with this. She used to tell us, ‘Let them copy what you have already done. They can’t copy what you will do!’… I feel sorry for those who feel they have to copy instead of come up with their own ideas.” Kevin Pourier (Oglala Lakota) works out of a studio on the Pine Ridge Reservation in South Dakota, creating inlaid buffalo horn jewelry, spoons, bowls and other artwork. When a friend told him his work was being copied, he couldn’t believe that something in his uncommon medium would be reproduced. With a few clicks on scrimshawstudio.com, however, he found that the friend was right. A man in Colorado advertised an “Inlaid Buffalo Horn Drinking Cup & Spoon” and a “Butterfly Necklace/Earring Set,” with inlaid lapis that used the same butterfly and floral designs Pourier used. While Pourier is the first to admit that anyone can use a butterfly or flower in their work, the designs on these pieces were remarkably similar to his in the way they were laid out and in their use of color. “I was kind of obsessed with it at first,” Pourier remembers, “but then thought: What can I do about it? A friend who used to be a lawyer pointed out
legal action could be long and costly, and that the guy copying says he’s a blind Vietnam vet. I still struggle with pursuing something like that.” Jim Stevens, the non-Native horn artist in Colorado, believes the similarities in the work are merely coincidental. “I have been working in horn and ivory and antler and other natural materials for over 35 years,” he wrote when asked to comment about the pieces that look like Pourier’s. “I have a book published on how to make powder horns. I live in Denver and the only Native American art or images I create are of the Native Americans who are originally from the region I now live in, mostly the Arapahoe, Cheyenne, and Southern Sioux. I went to [Pourier’s] website now that I have his name, and I am now aware of several similarities in our work.” Stevens continued, “I rarely do pieces like the buffalo cup and spoon and necklace; probably five in the last 30 years, and originally did them from my research years ago on Plains Indians. I have no problem with his claim to his style; didn’t know anyone else worked horn that much except for powder-horn making, which is my emphasis with horn. In my scrimshaw work, I have been doing etching, art carving and inlays in legal ivory for over 35 years and doing it in other materials has been a very organic transition over the years. The buffalo horn cup and spoon and the necklace are probably seven or eight years old, and I haven’t done anything like them since.” Interestingly, Stevens posted his buffalo horn, lapis and white magnesite necklace to his Facebook page on December 23, 2012, approximately a month after Pourier posted a buffalo horn, blue lapis and turquoise butterfly bolo with a similar overlapping butterfly design. Pourier posted a floral buffalo horn cup on Facebook in June 2013, and Stevens followed in July with his buffalo horn drinking cup, with a caption that said, “Adapted from the American Plains Indian use of buffalo horn for utilitarian objects, I decided to take this ancient functionality and raise it to intricate fine art stone and shell inlay.” Intellectual property rights are frequently discussed in the news, especially in respect to Indigenous peoples. “We work hard for all these years and people are expecting you to come up with the best piece of Native art anyone has ever seen — every market,” Pourier notes. “We live this every day, being Native, and it is disheartening to see people take one design and make it theirs. But this has been going on for 500 years now.” While Native art has been copied for centuries, the first law to prevent it didn’t come about until 1935. The Indian Arts and Crafts Act of 1990 makes 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.” So the law has teeth only when the work is considered an arts or craft product and/or is falsely advertised as being Native-made. In a 2018 case that National Geographic labeled the “Biggest Fake Native American Art Conspiracy,” jewelry dealer Nael Ali was found guilty of breaking the Indian Arts and Crafts Act in a multimillion-dollar operation. But even this resulted in Ali serving only six months in jail and paying a little more than $9,000 in restitution fees, less than the cost of some custom jewelry. The way museums display Indigenous art may influence why living artists are frequently copied. Exhibitions of historic Native work may reference geography or tribes but rarely give credit to individual artists, so many non-Native people don’t even associate Native work with individual makers. As awareness of Native-made art grows and Native artists become more popular, more are tempted to copy it. Cultural appropriation, defined by Fordham University law professor Susan Scafidi in a 2012 Jezebel article as “Taking intellectual property, traditional knowledge, cultural expressions, or artifacts from someone else’s culture without permission,” is rampant in the United States. If artists have the time and resources, however, all is not lost. Kate Fitz
Gibbon, a Santa Fe-based attorney who sits on the board of New Mexico Lawyers for the Arts, notes, “All original artworks, whether made by Native American artists or not, are protected through the federal Copyright Act. Copyright law protects what is ‘original,’ and copyright is automatic without registration. However, registration can give the artist more options, including the opportunity to receive statutory damages when making a claim against someone who copies their work. “Documenting work is a good step to take for lots of reasons,” Fitz Gibbon continues. “If the authorship of a work is misrepresented, or anything is misrepresented about the sale, then there are other claims that can be made under fraud or fair business practices laws. If an artwork is claimed to be made by a Native American and the maker is not a member of a federally recognized tribe, then that could be a violation of both federal and state laws in New Mexico.” However, the fashion business has different rules, Fitz Gibbons clarifies. “It’s an industry that is based on copying and making derivative works, similar to one another. That’s the definition of style, right? So wearable art is very hard to protect. Clothing can be protected by trademark, by the presence of a defining element such as a logo, but federal trademark is a costly process, and [the work] must be unique, and you must protect the trademark itself by not letting others use it.” “Every case is fact-specific,” the lawyer explains. “Therefore it is hard to give general advice. An artist whose work is copied by another and sold under another person’s name should contact a lawyer who specializes in intellectual property or copyright.” In addition to retaining a lawyer (the American Bar Association’s website offers assistance in finding reduced-cost and sometimes free attorneys), artists can find a variety of resources online to help protect their work. There are cease-and-desist templates and guidelines for describing the offending behavior, explaining why it is unlawful and stating the legal action that will be initiated if the behavior does not stop. Such materials should be delivered as registered or Priority mail or through another delivery process with tracking. Lawyers for the Creative Arts (law-arts.org), CERF+ (cerfplus.org) and many other groups list legal resources on their websites. Free watermarking services (for photos of artwork) are available from sites such as watermarquee.com and watermarkly.com. As well, New Mexico Lawyers for the Arts occasionally offers legal advice at clinics, as do similar organizations in other states. For consumers, education is key. Beyond reading up on the issues around fraudulent Native art, they should always ask questions about American Indian work they are tempted to buy, especially when it’s not being sold by the artist who made it. Where did this come from? How was it made? Where did the materials come from (especially for jewelry) and what are they? Is there a certificate of authentication to go with the piece? And if something seems too good to be true, price-wise, then it probably is. “I want buyers to be aware that if you’re buying a cheap knockoff, there is no heart and soul in that piece,” Begay says. “If they are buying stuff that is massproduced, they are taking food off the table of artists. They should be aware of their actions. For the longest time, my people have really been taken advantage of, and it’s still happening, daily.”