 Okay, we're back. We're alive. We're doing community matters today with Kevin News, and we're going to discuss about appropriation, not necessarily as a legal thing, but misappropriation as a violation of artistic principles. Is that a correct statement of it, Kevin? Well, more generally, cultural, but art definitely comes into it. Do you remember the good old days before COVID? We used to get worried about things like cultural appropriation. So I'm trying to ease us back into something that resembles normal, where things like that really matter to people. And so I've been spending some of my time whilst under lockdown, contemplating, well, what does cultural appropriation actually mean, and what is not cultural appropriation? There's been a lot of discussion of this, probably in the last 10 or 15 years. The issue for some is that it can't surely be that it's inappropriate for one culture to learn from another. That's one of the key drivers of human civilization. If it weren't for that, for example, we got from China the compass, the clock, paper, gunpowder, what would we have done without gunpowder? There's no Nobel prizes. So clearly ideas migrate across cultural and national boundaries, and often to the general betterment of civilization. So it surely, at least to me, can't be that, well, there'll be no more cultural exchange. So where's the line between legitimate kind of benign cultural exchange and something that is pernicious or damaging? And that's what I've been trying to figure out. So I came up with a theory that, and it's based on your discipline, not mine. So I'll name you if it all goes south. It's the notion of the legal notion of no harm, no foul. If nobody got damaged, then nobody should be held guilty. And that's the kind of premise if we go to the first slide. So we're talking about infringement of a kind here. That's what we're talking about. Right. And the two types of cultural harm, or at least harm then that I considered were loss, you know, you can lose income, you can lose property, you could lose identity, and offense, you know, somebody could just be harmed, you know, if I hurt your feelings, you're harmed, right? So two types of harm, psychological and one is more sort of, well, not entirely tangible, if it's cultural, but something is lost, something necessarily important. And that brings me to the second slide. The criteria that I propose would be that the thing that is lost or taken without permission has to be significant. If it doesn't matter to anybody, then it doesn't matter to anybody. It needs to be recognizable in its new context. And it needs to be taken by a dominant culture. I'll come to the second part, but the recognizability part, Jay, if I were to steal your car, and I know that you've got a really nice car. And, you know, tripped it out, changed the color, you know, put big stripes on it, you know, pimpy wheels, you know, all the rest of it, to the point where, you know, I could park it outside of your house and you wouldn't recognize it. Would it still be yours? I don't have a really nice car. I've never had a really nice car, but we can continue this conversation anyway. Let's pretend that you had a nice car. And I took it and I mean, I legally, even I know this much, doesn't matter whether you can't recognize it anymore. I took it to a shop or whatever. It's still your car, right. But there seems to be a significant fundamental difference between a material property or possession like that, and a cultural possession, where if I take something from your culture, and change it such that you don't even recognize it, it's hard, I would argue, to claim that it still belongs to you, or vice versa, to me if you took it from me. If I walked past it and didn't even recognize it as mine, then when I learned that you did derive it from me but you changed it so much, then I get offended. It seems somewhat, I don't know, fake. If you don't even recognize your own thing, when it's not a material possession, then it seems to me that it's, it's tough to make the argument that it still belongs to you. So those are the premises, Jay. So I looked at some examples that would not qualify under those criteria in order to make some kind of a useful distinction so that people are not left in their current state where people will make accusations of cultural appropriation, and it's hard to defend that. When there's no criteria, there's no definition. In the end, it starts to become very subjective. If somebody takes offense, then, you know, well, it must be called for misappropriation, then. And that's the other point that appropriation, of course, is not inherently bad. I believe Congress has an appropriations committee, and I'm sure they're up to all sorts of nefarious things, but that isn't automatic, right. So appropriation is a neutral word or was. There's a perfectly good term for the abuse of appropriation that's misappropriation. So I prefer to use cultural misappropriation, because I think some appropriations of other cultures are legitimate, and that will probably get me into trouble. But I'm trying to make that distinction so that people can have a decent conversation based on some sort of objective criteria rather than sort of subjective. Well, I think it is and somebody else thinks it isn't. Which ones are legitimate? How would you define that, Kevin? Well, if one of those criteria, if the original form or idea wasn't significant, or it isn't recognizable in its new context, or it was adopted by a non-dominant culture, from a dominant culture, then it seems to me that little harm, little or no harm is done. If one of those criteria is not met, right, it could be significant but unrecognizable, in which case, where's the offense? Where's the harm? Where's the undermining of the culture? It could be that it is significant and recognizable, but it came from the dominant culture. Usually, dominant cultures like to project their own image onto other cultures, so usually they're not offended. They're quite the opposite, probably flatter. And if it's not significant, as I said, in its original context, and then it gets adopted, well, if it wasn't significant to start with, why does anybody need to be offended by its adoption somewhere else, even if it is recognizable? So those are the three criteria. They raise other questions, which we'll talk about, but let's go to Image 3, which is a couple of architectural plans. One is a fairly ordinary traditional Japanese house plan, and one is a house plan designed by Frank Lloyd Wright, who we talked about a couple weeks ago. And I believe that one is, the second one on the right, is based loosely on the one on the left. Although you would be hard-pressed, and so would a Japanese, I think, to recognize that because in the three-dimensional form, which is what you actually see in the real world, not the plan, it doesn't look remotely Japanese. So for two reasons, that form was not particularly special, it wasn't culturally significant, and it was not recognizable. It wouldn't qualify as cultural misappropriation by the criteria that I'm proposing. If we go to the next one, another architectural plan, and I'll stop with the architectural plans after that. The plan on the left comes from Pergamon, an ancient Hellenistic Greek city on what is now the coast of Turkey. And on the right, a modern library by the Finnish architect Alvar Alter. And again, I believe that he derived his plan from this ancient plan. Now, there aren't many Hellenistic Greeks left because, you know, most of them died a long time ago. But even a contemporary Greek would have a hard time, again, recognizing that. So you could argue maybe it was significant, but it's really, to all intents, unrecognizable in its new context. So no harm, no foul, not misappropriation by my criteria anyway. And then if we go to the next one, and this will be, I think, yeah, this is the way that the two Japanese solilovers, Katagana on the left and Hiragana on the right, were derived from Chinese characters in the middle. And if you didn't know, as a Chinese, it would be hard to tell that the transformation is so great that it would be difficult to recognize your own texts. So the source is clear when it's set out this way. And if you just showed a Japanese or a Chinese speaker or writer in this case, those Japanese ones, unrecognizable. So in this case, there's no doubt that Chinese characters are deeply significant. But if they're unrecognizable in their new context, then it becomes a kind of, well, where's the harm. And in this case, in the sixth century, at that time, China was the dominant culture, and Japan was borrowing from China. So it doesn't qualify on two criteria, that it's not a dominant culture weakening a less or a minority culture. And the forms are not recognizable, even though they're significant, they're not recognizable in the new context. And then if we go to the next ones, we start to get into a kind of world war. This is the Emperor Meiji, dressed in poor European imperial regalia. And yes, it's, you know, at the time it would have been cultural significant and instantly recognizable to most Europeans. But Japan was not the dominant culture. So where's the harm, you know, most Europeans at the time I would suggest would probably be flattered that Oh, Japan is becoming one of us, you know, that was the big, you know, to become a member of the of the respectable democratic nations of the world. And, you know, and you had to dress right to do that. It's like being a member of the club, right. So, you know, the members of that club would would would be flattered and approve that Oh, you want you genuinely want to be a member of the club. So, you know, there's no cultural undermining there, you know, European culture was perfectly fine it was the dominant culture at the time. So, again, by these criteria, at least, not cultural misappropriation. Suppose I suppose I made fun. Suppose I dress just like him, same kind of outfit in a parlor game in London somewhere, right 19th century, and I intend to make fun. And now is that is that misappropriation putting I'm putting him down you understand. Yeah, yeah, yeah. I assume then you would somehow have to dress yourself to look Japanese and that I'm not sure if it's misappropriation but it's certainly offensive. Yes, I suppose I mean, you know, if, if, if racial characteristics are part of culture, then, then it is, you know, it's obviously significant. So yes, it would be definitely. Maybe part of your definition is it has to be serious. I'll think about that but I mean I think, you know, your physiology as a racist is, you know, is clearly important. It's clearly significant. I'm not talking about the race part of it. I'm just talking about his outfit. Oh, I see. Well, his outfit came from Europe so they would have been making fun of themselves. You know, if you think that was ridiculous, most of the leaders of Europe dress like that. And I'm all for making fun of royalty anytime you want. But it wouldn't be unique to Japan, you know, like I say, is our dress like that, you know, the, the Kaiser, you know, the king, they all dress like that. You can hardly tell the difference in the 19th century they all had these outfits. Exactly. Exactly. So it was. And I might add that in the 20th and 21st century, you had American military uniforms, these are military uniforms that were copied by everybody. Right. And you can hardly tell the difference, you know, between an American military uniform and some developing country military uniform. I'm going to look into that. You know, I don't think anybody complained about it because it was, you know, what do they say is the imitation is the most sincere part of flattery. Yeah, they do say that. As long as they can tell the difference on the battlefield, I really don't mind, you know. What are the next people. So here is Claude Monet's wife. Camille dressed in kimono with the family, etc. And, well, you know, the kimono and the family are culturally significant. They are instantly recognizable by Japanese. They are empowered by the dominant culture of the European culture at the time. So bingo, we have cultural misappropriation and just to reinforce that at Boston Museum of Fine Arts. I don't know what they were thinking about three, four years ago. They invited patrons to come in dress in a kimono in front of that painting and have their photographs taken and there was uproar. You know, it definitely qualifies on all three camps culturally significant immediately recognizable by the people from that culture. And it's a dominant culture basically playing with the things that identify a minority culture at the time. So if you go to the next one, but it wouldn't it wouldn't be nearly as much a misappropriation. If the individual wearing the same outfit was in fact Japanese. Oh, I don't. Yeah. Yeah, I mean, if it's your own culture, then that changes everything obviously, but it's the borrowing. It's the assumption adoption of somebody else's. So, you know, I don't wear Hawaiian shirts because I don't feel like I'm on Hawaiian, you know, so I'm playing with you there. You'll change your mind. Yeah, I've been told that Hawaiian shirts are not really Hawaiian anyway. I'll probably start a firestorm now. So somebody told me that they came from cut up kimonos. So there you go. Hawaii is the perfect example of mixing of cultures, right? What is the food that is developed your pocket, you know, and, you know, a real kind of smorgasbord of, and it's great. Right. As long as nobody's taking offense. So I'm trying to clarify what's okay. Right. And what's what crosses the line. Well, can we look at that for a minute about the offense part. Different strokes for different folks. Some people would be offended by a given appropriation and others would not. Yep. And a jury of 12, you know, they could go this way they could go that way. It would certainly wouldn't be unanimous everybody would have a different right the word offense. Yep. People have got that got there before me Jay philosopher. His name escapes me Wilson I believe has looked at that and I forgot the exact terms of users but he describes the kind of offense you know that it has to be reasonable. And it has to be. It's not his term but severe I mean. He admits himself though that they raised the question of well just who defines reasonable and severe, you know, so you know, so you answer one question and it brings up another. Well sure it doesn't and offense you know something being offensive that is usually an emotional reaction. Or at least in part of an emotional reaction so it's, it's hard to put them, you know, an objective standard on that. It sounds like that that great old case about pornography that was decided by the Supreme Court in the 50s. I can't define it. But but I was a comment. I can't define it. But but I know when it's there. I know I want to see it right. Yes, I know it when I see it. Thank you. Yeah, I can believe that. Yeah, I mean I think that I joked with you earlier I'm going to give you a test at the end to see whether you can, you know, whether you can, when you know it, recognize cultural misappropriation when you see it right. And then I'm actually this is a lesson. So I'm going to see if I, if you learn or whether I failed to teach you. So what are the next image. Yeah, so here we go. Pretty offensive stuff if you come from either the cultures, you know, a culture that Japan in particular, although the characters of Chinese Zen, at least in that pronunciation is Japanese and then the Hindu culture on the right and Western commercialism, basically trying to sell stuff on the back of culturally significant symbols, and they are instantly recognizable and they're not. And again, it's the dominant culture because in those culture cultures or in those countries, Buddhists and Hindus are the minority, and there was a backlash for both and certainly for the beer which was taken off the market. I'm not sure about the shampoo but but you know, I think that's a fairly clear example of why somebody would be offended it's instantly recognizable it is significant, and it's being used for. What's the word. An unflattering purpose right a base commercial purpose right and taking a religious symbol like that. The swastika right is the classic example of that right, a South Asian symbol that got completely subverted to the point now where lots of us can't look at that without going. Yeah, that's not right. So that's that's an egregious example of cultural misappropriation right where they've turned something and completely inverted its its meaning. It means light in its original context could hardly be more different right so it's right up there at one end of the spectrum of the worst kind of cultural misappropriation. That's the perversion of meaning. On to the next one. Okay this is the saga of Mike Tyson's face tattoo right which apparently seems to have come from traditional South Pacific tribal tattoo forms, and then it gets parodied in this dreadful film The Hangover, which I have to admit I think I did see the first in my shame. And then there was a lawsuit, the tattoo artist who did the Tyson tattoo and Tyson appeared in the film but the tattoo artist tried to claim personal copyright over the tattoo and sued Warner Brothers. And I believe the lawsuit failed. But it seems to me, I mean first of all, the forms are culturally significant, they are recognizable. And this is a dominant culture, basically America, borrowing from, if not Maori than South Pacific culture. And even, you know, if that isn't enough, you know, the appropriation of or misappropriation of their cultural form, then there's the insult being added to that of trying to profit from it and claim copyright over something that you took from from a culture without without which seemed to sort of double the insult. It reminds me of the, the lawsuit between Microsoft and Apple, probably 30 years ago. You know the story that a lot of the technology for them for the Macintosh came from the Xerox labs in Palo Alto. And then Apple, i.e. Steve Jobs, trying to sue Windows or Microsoft for coming out with Windows, which they felt was too close to their operating system. And the argument in court, which actually succeeded was, well, you know, if you went into a window and stole something without permission, and then I took it off you go on the way out. Who's wrong here. And it worked, you know, Apple lost the lawsuit. So, yeah, so I think those kind of examples cover the whole gamut from apparently innocuous, right. You wouldn't even know that, you know, where, where a particular form had come from to, well, it's significant, but you wouldn't know or it's not significant, or it's coming from a dominant culture who wouldn't be offended or have their identity undermined by its use. So now I have, when you're ready, Jay, I have my test ready for you to see a few. Okay, I just want to make a comment though. Yeah. There's a, there's an element that I would build into that. And that is whether there was a sacredness, if you will, about this particular design. To the extent there is a sacredness, you know, that heightens the possibility of misappropriation under this context. I'd agree. Absolutely. I don't know enough about Maori culture. But they did object to the Tyson tattoo and they objected to the lawsuit. I mean, also perhaps, you know. So clearly they felt that these forms were significant and whether they use the term sacred, but for many, many of those tribal forms are with a small s in a way sacred. But they, they are very protective of that culture because it is an endangered minority. And so they're super. I mean, I, I believe some, some nurses in the UK did the hacker recently as a sort of jovial kind of, I don't know, like relief in the middle of the COVID. They were severely criticized by people from the Maori community. I think making fun sometimes is very unfair. I am also reminded Kevin of a program that was conducted at the William S. Richardson School of Law, probably 10 or 12 years ago, I remember going to it and it was, it was really right on this conversation. A study of whether cultural misappropriation or appropriation, if you will, of Hawaiian patterns like Tapa pattern, Tapa patterns, you know, was actionable as a violation of some infringement. I mean, legal infringement. I know you're not talking about legal infringement. We've been talking about something other than legal infringement, but about whether it might be an infringement. And the problem was, I don't remember how it came out or who argued what I, I don't think it was ever met with either an actionable lawsuit, or, or I mean a successful lawsuit, or a change in the law. But one of the problems with it was, well, who owns this, the community owns it. I mean, and what community, who is in the community. Let's assume you make a run at somebody for trying to characterize cultural misappropriation as an infringement, some kind of common law infringement, taking your property. Well, who gets who gets the award. Yeah, how do they share that the $6 verdict. Well, I mean, this is the issue and as an author, Susan Scafardi, I think I probably crucified her name, who looked at cultural misappropriation or appropriation from a legal stance back in like 2005, I believe. And she points out that what you've just described there that, that whilst individuals and artists in particular can copyright their work, cultures can. And it's not that they shouldn't be able to. It's just that the law, well, there isn't a law yet. You have to have an entity. I mean, if you went out and try to copyright a Maori design. What about all the other Maori's you hold an interest in this design and they don't. That doesn't seem right. So, you know, it's really it's the same kind of thing. It's it becomes property and and and doesn't there have to be some entities where you say, Well, okay, it's the Maui Cultural Association, a nonprofit corporation incorporated in New Zealand. Yeah. Well, who's a member of that. Yeah, and if I'm not a member do I have any right to the whole question of property rights. Interesting. I mean, I, um, yeah, and then there would be disputes over well we've got rival cultural, you know, somebody would think they could probably make a buck out of this and go, Well, I'm going to set up my rival. So, you know, and then there'll be a lawsuit over the split of the, you know, I can see I can foresee the issue with that. But it is odd. I mean, I circle back to what I was describing your car, your non existent car or flashy car. And, you know, the difference between a tangible object and cultural form, which is intangible. And here we are at the other end, you know, the law can only deal with the physical that needs to be physical property. And they're, well, intellectual property is a thing. Right. So, um, but now we're hearing, Well, there needs to be one identifiable physical owner, you can have a culture, which is a kind of a non tangible but if you can have intellectual property. Can you not have, you know, equally an intangible kind of entity as you call it. I don't know. I don't know. It could be that from then till now or at some point in the way along the way, some court has said, Well, this, this is a class action. And when you sue on behalf of a culture, you're, you're actually, you're actually doing a class action and certified as a class action and anyone in the class and I suppose that would be blood quantum or who knows what would have a right to pursue that claim. I don't know the law. No, I'm glad one of us is a lawyer we're making some progress. We're going to make progress into the exam because we're almost out of time. Oh, okay. All right, into the exam into the I always like to take exams very quickly, you know. All right, can we see this. Okay. Two wonderfully poetic post t shirts right one one Chinese characters. The Chinese character one is smite, sorry, fighting elves. Right. I assume you can at least read the one on the right even if you don't understand I don't understand it either. Okay, is this cultural misappropriation or no. And you want to give us a reason or one doesn't relate one doesn't relate to the other I'm sorry. Okay, but there's a court under the criteria right that I would specify. Oh, could you go to the next one. Okay. Okay. So, if we go back one the reason is that they're not culturally significant. They're meaningless phrases right. So they're instantly recognizable but and I've tested this on Chinese people they go, well it's kind of stupid but it's not offensive, you know, it's not culturally significant. So the offense would be it's, it's stupid. Well you have a poor sense of humor but you know, is that if they applied that test to litigation in general, there's a lot of cases of. Having a poor sense of humor. So here we have you know the the the classic. Everything from, well, slightly less offensive stuff when they're just turned sell stuff to fascism, you know, and the military's got involved as well which really surprised me before the Second World War the swastika was being used on western military as a Western military insignia which I had no idea. So what do you think. misappropriation or not. Yeah, it strikes me as it is misappropriation. And I think the the people where did you say it was in Myanmar. Well, South Asia in general. Yeah, South Asia in general have a good claim against the Nazis they ought to sue him. All right, next. And ask for a lot of money. Yeah, right. The problem is, you have to identify the Nazi organization today. That's interesting. There are actually organizations out there that are still using the swastika. There you go. Can you imagine an injunction against using it that would be something else that would be pretty interesting to say nothing of the damages. Yeah. Yeah, I'm going to wait and see with that. What do you think. I can't see the one on the left very well what what is that it's a Japanese Japanese woman. It's a Japanese print. And then to lose the track. Do you think the um Devon Japan is, excuse my french While there is this this is a resemblance, for sure, in terms of the color, the color of the clothing. But is it misappropriation. No, because you are Japanese with thinking, you know, with this be. Is it significant is it recognizable. I don't think it's recognizable. Exactly. And I think that Toulouse Latrec had his own style and it was just an accident. All right. Well, next slide. Yeah, that was my conclusion that, you know, most Japanese, unless they were told would not, especially at that time, would not have said that that is remotely Japanese. I like them both, though. I hang either one of them on my wall. Yeah. And I think that's my, you know, that's my point, I suppose, that, you know, that kind of artistic borrowing, creative synthesis does no harm and, you know, are in general profits from that benefits from that. Sorry. But they can coexist. Exactly. Right. Without anybody being offended. No harm, no final slides, I think. Okay. That's it. I think we got, I think that was it. Yep. Okay. I guess I get 100% on that or an A. You passed. I mean, you had the answer, you know, but no, that was good. So what should we leave people with here? I mean, suppose, just to put the cap on it, suppose we find that there is cultural misappropriation in art, architecture, design, what have you. Where does that take us? Do we stamp our feet or what? I think you've called a lawyer. Class action. Yeah, I'm not excited. You'd have to make a lot of calls to find one who would take that. This is why I'm talking to you, Jay. I'm relying on you to be the guy. No, I look forward to the day when, you know, we are having conversations about this kind of thing. You know, it matters. You know, COVID puts everything into the shade, of course, as it rightly should. But, you know, these things did matter and I'm looking forward to the day when they matter again, you know, and we can talk about other things. But clearly, we're not out of the woods yet. But yeah, when we are, I'll be at your office with a class action lawsuit about some of this stuff. I'll be sure to refer you to somebody who might help you. It would take me a while to figure that out. But let me offer this thought. You know, there's an awful lot of infringement goes on all the time. And that's infringement in a legal sense. And that's because we live in a world of images that are easy to obtain and easy to propagate. We live in a world, a flat world, Thomas Friedman's flat world where everything is all meshed up. There are positives and maybe there are negatives about that. I mean, for example, I hate to see the great Japanese culture be diffused in any respect because I admire it so much. And then so for a lot of cultures. But the fact is that in a globalized society, in a flat world, people are going to emulate what they like. And it is usually a statement of admiration that they emulate this sort of thing. And the people who and the people who say, well, I'm offended by that. I want recourse against you. I'm really ticked off that you took my design or my cultural my cultural rendition. They should they should get a life. Well, I admit, you know, many people would agree with you, but lots of people would disagree, you know, that this is a serious thing, sort of identity. They would argue that it's not a flat world yet. And why should we accelerate that? You know, do we all want to be homogenous? You know, or, you know, is it worth preserving? Just as we would preserve species, preserve these cultures and not have them. I have to admit that there is a kind of almost an inevitability about some of this. You know, it's not whether we like it or not. It's just going to happen, right? But I think it's a worthwhile discussion, you know, as to know I came into this really from a sort of from the point of view of creativity, what is originality? And I touched on that a couple of weeks ago when talking about right, you know, people would misunderstand if you had sources. Somehow that makes you unoriginal. And to me, you know, bringing things together that previously existed, but in brand new combinations is creativity is originality. So I didn't set out to look at appropriation per se, but I sort of stumbled into it. Because a lot of what Wright did, I would argue, well, for years and years and years, people didn't recognize it. So almost by default, then it wouldn't qualify as misappropriation, because nobody actually recognized it as Japanese. People would say, well, you know, there's something Japanese about his work or whatever, but we can't quite pin it down. And, you know, I am a little bit too close to Wright, I suppose, but he's where I started on this. And then was sort of interested in, well, if he's not guilty of cultural misappropriation in most cases with his architectural plans, then where does the line, where do you trip over into something that really is damaging? And that's how I got into this. Well, you're a cultural appreciator person. And let me say that the real inquiry here, recognizing the coming homogeneity of the world, the real question is to recognize the influences in any work and to respect them as influences, to appreciate them, and to appreciate the work itself as a combination of influences. And that is the, you know, to me, that is a very gratifying experience. So, Kevin, thank you so much for this discussion, provocative as it was. And I look forward to our next discussion soon thereafter. Take care, be well, stay well, and we'll talk to you in a couple of weeks. All right, great fun. Thanks, Yang.