Intellectual Property Law and the Globalization of Indigenous Cultural Expressions: Māori Tattoo and the Whitmill versus Warner Bros. Case

Whitmill v. Warner Bros.

In 2003, the American artist Victor Whitmill created a ‘tribal’ facial tattoo for heavyweight boxing champion Mike Tyson. Popular accounts in the New York Times (Cohen, 2011) and the New Zealand Herald (2011) mention that the design is Māori in derivation. The fact that it is applied to the face may be considered further evidence of its Māori origins, for tā moko is renowned for the full-face tattoo traditionally worn by men. Numerous mokomōkai (preserved tattooed heads) scattered throughout private and public collections worldwide (many recently repatriated to the Museum of New Zealand) attest to the existence of moko motifs in the cultural memories of European communities from at least the early 19th century. Tyson himself speaks of the tattoo as representative of ‘a New Zealand warrior tribe called the Māoris’ in the documentary Tyson, directed by James Toback (2008).

Since 2003, as a result of Tyson’s celebrity and public engagements including a lead role in Tyson and an appearance in the original Hangover movie, the tattoo has itself become a memorable pop-cultural artefact. It even featured in Hangover II and the associated advertising campaign, on a character played by Ed Helms, as well as on Tyson playing himself in the film. Given the enthusiasm of media firms in recent years for aggressive action against file-sharers for copying music and movies, it is surprising that Warner Bros. failed to consult Whitmill over the copying of his artwork for profit. It is also ironic that Warner Bros. invoked ‘fair use’ as a defence, as it is precisely this defence that the American media oligopoly to which Warner Bros. belongs refuses to recognize when it lobbies governments around the world to criminalize file-sharing and prosecute media ‘pirates’.

Consider how, in 2008, at the instigation of firms including EMI Music, Columbia Pictures, 20th Century Fox, Universal Music and Warner Bros., Stockholm District Court Prosecutor Håkan Roswall began formal legal proceedings against the Pirate Bay organizers and a backer, charging them with conspiracy to break copyright law in Sweden (Roswall, 2008). When copyright owners in this case contend that all file-sharing is piracy, no allowance is made at all for personal use or fair use. However, according to the legal scholar Jessica Litman (2007: 1908–11), fair uses have been ‘lawful by long tradition’, and furthermore ‘occupy the heart of copyright’s historic liberties to enjoy copyrighted works’. Warner Bros. recovered from its amnesia regarding the existence of fair use provisions a little too conveniently in the Whitmill case.

In April 2011, Whitmill filed suit in a US district court to block the release of Hangover II on the grounds of copyright infringement (Missouri Eastern District Court, 2011a). In Warner Bros.’ submission in opposition to Whitmill’s motion for an injunction, besides the defence of ‘fair use’, the corporation’s primary argument appeared to amount to the following: ‘The (financial) harm to Warner Bros. and numerous third parties from such an injunction would be devastating’ (Missouri Eastern District Court, 2011b). In May, Judge Catherine D. Perry allowed the movie to be released as planned, arguing that the harm to ‘public interest’ outweighed the harm to Whitmill (Missouri Eastern District Court, 2011c). That Warner Bros. stood to lose up to $100 million had Perry ruled in Whitmill’s favour suggests that the biggest benefactor of the ruling was Warner Bros. rather than the American public. Perry nevertheless recognized that Whitmill suffered as a result of the copyright infringement, having ‘lost control over the image he created’, and should therefore be entitled to compensation. Whitmill and Warner Bros. reached a settlement in June (Missouri Eastern District Court, 2011d).

Evidence submitted by Whitmill to the court leaves little doubt that Warner Bros. copied his design, replicating it on Ed Helms’ face. Readers unfamiliar with copyright law may wonder how Whitmill can own a tattoo that has been paid for, and furthermore, is attached to Tyson’s face. The answer is that the work protected by copyright law is the actual artwork Whitmill created in the form of sketches and drawings, which was subsequently transferred (copied) onto Tyson, and then by Warner Bros. onto Helms. Copyright ownership entitles Whitmill to near-exclusive control (apart from fair use) over the copying of, or exploitation from, the work. Although Whitmill has emphatically chosen not to, he could even sue for copyright infringement over the filming of Tyson in Tyson and Hangover. (Strangely, this was another point raised by Warner Bros. in their defence, the fact that Whitmill had not sued them in the case of the original Hangover movie.) After all, Tyson signed a release to the effect that ‘all artwork, sketches and drawings related to [his] tattoo and any photographs of [his] tattoo are property of Paradox-Studio of Dermagraphics’ (Missouri Eastern District Court, 2011a). One can only speculate on the sum involved in the settlement reached by both parties in June 2011.

Aotearoa v. Whitmill & Warner Bros.

The problem for many Māori with the Whitmill v. Warner Bros. case is expressed in no uncertain terms by Ngahuia Te Awekotuku, author of Mau Moko: The World of Māori Tattoo: ‘It is astounding that a Pākehā (non-Māori) tattooist who inscribes an African-American’s flesh with what he considers to be a Māori design has the gall to claim … that design as his intellectual property’ (New Zealand Herald, 2011). Contemporary tā moko artist Mark Kopua, when consulted by New Zealand’s Waitangi Tribunal on tā moko, said:

There is a need for regulation to prevent non-Māori who want to wear the moko as a fashion statement or to help sell records or magazines or branded apparel. This is because their motivation differs radically from those descendants of moko wearers in the past. I want a law that would prevent a Mike Tyson or a Robbie Williams or large non-Māori companies from wearing and exploiting the moko. (Waitangi Tribunal, 2011: 69)

At the heart of the matter, the conflict exposes a fundamental incompatibility between differing concepts of creation, different philosophies of art and artistic agency. In the by-and-large Anglo-American copyright tradition originating in the British Statute of Anne (1710), copyright is an exclusive privilege or monopoly granted for a limited term to a creator over the copying (and exploitation) of an original work. Creation is for all intents and purposes understood as the non-derivative work of an individual person, an author, painter or musician, for example, and tends to be underpinned by another concept, namely, individual property ownership. In tā moko, on the other hand, the genealogical perspective emphasizes an individual person’s belonging to a larger collective. As Alfred Gell (1993: 251) writes, through the moko, an individual ‘achieved identification with the ancestors’. Creation in this case is less a personal affair than it is the manifestation of ancestral and collective agency and identity, in which a living person is but the most recent appurtenance in an extended durée (duration) spanning multiple generations.

Relying in part on Roger Neich’s work, Gell (1998: 252) portrays Māori meeting houses or marae similarly. Like moko, marae must also be conceptualized in terms of enduring social processes; they are always ‘collective indexes of agency’.

The house was not a surviving trace of the ancestor’s existence and agency at some other, distant, coordinates, but was the body which he possessed in the here and now, and through which his agency was exercised in the immediate present. At the same time, the house was a multiplicity of connected bodies, a bodily ‘fractal’ in Wagner’s sense, since it consisted of the bodies of the ancestor’s descendants, by genealogical succession, both living and deceased. … The living members of the community, gathered in the house, were, so to speak, only ‘furnishings.’ (Gell, 1998: 253)

Whereas copyright regimes begin from the perspective of self-interested individuals and their various properties, the view here begins instead from a trans-generational assemblage, an ancestral whole whose duration exceeds that of any individual person. It is of course not only the concept of creation that is at stake, but also basic assumptions about time and reality, such that the conflict might be portrayed in terms of antagonistic ontologies. The former perspective exemplifies what we identified as micro-reductionism in the introduction, an ontological commitment to individual persons and their intentional actions as the fundamental unit of social reality. The problem with methodological individualism, however, is that large-scale entities such as towns, cities and nation-states, as well as ethnic, religious and political communities, are not merely subjective categories of meaning in the minds of individual persons but possess autonomous realities of their own, with properties that cannot be explained solely in terms of the sums of their parts. These large-scale assemblages are as unique as individual persons, but exceed them in life-span terms.

An ancestral body ‘in the here and now’ is just such an assemblage, with a ‘deeper’ cultural memory as the virtual half of itself, and a territorialized and coded population of individual persons, living descendants and their social rituals and relations with ancestral territories as the actual half of itself. ³ Theoretically, there is no reason why such an individual should not be accorded rights in the same way that individual persons have been. At this point, a distinction should be made between the large-scale social whole just discussed, and reified generalities such as ‘the rational individual’ and ‘society-as-a-whole’ (DeLanda, 2006: 32, 34). While the former is anchored in historically given circumstances and locales, for example, a population of Māori hapu and iwi together with their ancestral territories in New Zealand, the latter, as generalizations, assume a dimension of universality, meaning that what is said of ‘the individual’ and ‘society’ applies to all individuals and societies. In reality, such propositions are usually grounded in specific locales and cultures and erroneously assumed to be relevant to entirely different assemblages.

The objective so far has been to map differences in concepts of creation and ontological commitments between Whitmill and Warner Bros.’ world of copyright and the Māori world of tā moko. It remains for this section to discuss how the appropriation and subsequent copyrighting of cultural motifs by an outsider conflicts with cultural rights with respect to the provisions of international frameworks. Using the example of the International Covenant on Economic, Social and Cultural Rights (Office of the UNHCHR, 1966), the actions of Whitmill and, later, those of Warner Bros., conflict with the provision of Article (1): ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ Since, as Te Awekotuku observes, Whitmill never consulted with Māori (New Zealand Herald, 2011) and is not in any way related to Māori, it is difficult to see why he (or Warner Bros. for that matter) should financially benefit in any way from a ‘creation’ that owes a great deal as an image to tā moko. On the contrary, it takes something away from a people’s right to political, economic, social and cultural self-determination. From this perspective, Whitmill v. Warner Bros. should also be a case of Aotearoa v. Whitmill and Warner Bros.

Besides the International Covenant on Economic, Social and Cultural Rights, intellectual property legislation may also conflict with articles of the United Nations Declaration on the Rights of Indigenous Peoples (UN, 2007). Like Article 1 of the International Covenant on Economic, Social and Cultural Rights, Article 3 of this declaration also stipulates the right to self-determination and free pursuit of economic, social and cultural development. Such a right in the context of tā moko would presumably include the ability to restrict the copying of moko (including recognizable motifs or patterns) as well as the use of the term ‘moko’. It is worth noting, however, that according to the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (Mataatua Tribes, 1993), ‘existing protection mechanisms are insufficient for the protection of indigenous peoples’ cultural and intellectual property rights’. Thus the same declaration also urges the development of additional instruments for the protection of such rights, which incorporate (among other things) recognition of ‘collective (as well as individual) ownership and origin’ and provision for a ‘multi-generational coverage span’.

In one of the few articles in legal scholarship to examine the tension between international intellectual property law and human rights, Lea Shaver and Caterina Sganga (2009: 637) begin the long-neglected task of interpreting the provisions of the International Covenant on Economic, Social and Cultural Rights, specifically, Article 15(1)(a), the right to take part in cultural life. As Shaver and Sganga (2009: 639) argue, such interpretive work is critical and urgent, as it is likely to ‘have a strong impact on the future development of legal norms’, including those concerning the scope and limitation of intellectual property rights. In the context of aggressive and globalized copyright lobbying by firms such as 20th Century Fox, Warner Bros. and EMI Music, and their representatives, for example, the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and the International Federation of the Phonographic Industry (IFPI), it seems urgent and critical to extend the interpretive work begun by Shaver and Sganga to the other articles of the International Covenant on Economic, Social and Cultural Rights, as well as to the Declaration on the Rights of Indigenous Peoples, with an emphasis on provisions for cultural rights.

Such work can build on existing scholarship on the conflicts between intellectual property laws and cultural rights and resources, for example, the work of Barclay (2005), Graber (2009, 2012), Carpenter et al. (2009) and Blundell (1993, 2011). Valda Blundell’s early work in 1993 already began a discussion of the problems involved in the appropriation and commodification of aboriginal cultural forms by ‘non-natives’ in Canada. Her submission to the Land and Environment Court (Australia) (Blundell, 2011) opposed the installation of a stone sculpture portraying ‘Wanjina’ on the grounds that it was not authorized by the Wanjina-Wunggurr people, and that it constituted an assault on their identity. The Court upheld the decision of the Blue Mountains City Council to prohibit the sculpture. Notably, Blundell recognized that an aggregation of individual persons and their ritual practices involving specific rock art ‘paintings’ could constitute an individual at a larger scale, a trans-generational social individual with its own identity – Wanjina-Wunggurr.

Blundell’s work is exemplary because it deals with historically situated assemblages, in this case, a unique ‘people’ known as Wanjina-Wunggurr, existing within a population of other large-scale entities, other Aboriginal and non-Aboriginal peoples. One of the first steps in reformulating the ontological commitments subtending intellectual and other property laws might involve recognizing the existence of large-scale social individuals such as these, and according them certain rights and protections. Such a reformulation would mean that ownership privileges in an artistic tradition like tā moko could be assigned to social wholes such as hapu (clan or sub-tribe) and iwi (tribe), or to Māori as a collective partner of ‘The Crown’, without reducing these units of duration to ‘persons’. Multi-generational coverage could then become feasible through, for example, the interpretation of ‘life’ ⁴ in existing copyright terms as the lifespan of the hapu or iwi, rather than that of an individual person.

Having said this, cultural property ownership may not necessarily be the most appropriate path to take, even if it may be easier and more palatable for many than the alternative of indigenous self-determination and ‘shared sovereignties’ (Graber, 2009: 25). This is an issue that Carpenter et al. (2009: 1027–8) have also raised:

To the extent that indigenous peoples’ cultural property claims are premised on custodial duties toward specific properties, we argue that such claims are more appropriately characterized through the paradigm of stewardship rather than ownership. Because they often act in the absence of title, such accommodations tend to fall outside the paradigms of individuality and alienability upon which classic property law is premised.

Human/Artistic v. Cultural Rights

When Shaver and Sganga (2009) argue for reforms in international intellectual property law on the basis of the (human) right to take part in cultural life, they do so out of well-placed concern with the potential in prevailing intellectual property regimes for excessive control over (personal) creative and communicative liberties and the recent expansion of copyright enforcement efforts. A case in point is the New Zealand government’s Copyright (Infringing File Sharing) Amendment Act (2011), which imposes heavy penalties on file-sharers ($15,000 fine or suspension of internet service provision for up to six months) on the basis of repeated allegations (and not convictions) of infringement by copyright holders. Rushed through parliament without significant public consultation, the act conflicts with a number of human rights, including the right to take part in (networked) cultural life, specifically, in one of the internet’s most common activities, file-sharing. Oberholzer-Gee and Strumpf (2010: 19) provide a measure of the ubiquity of file-sharing when they observe, ‘more than 60% of Internet traffic consists of consumers sharing music, movies, books and games’.

If we accept Shaver and Sganga’s (2009: 637) interpretation of the human right to take part in cultural life as ‘the ability to access, enjoy, engage, and extend upon a common cultural inheritance’, it is not difficult to see how the new act contravenes this human right, deliberately limiting the ability of New Zealanders to access, enjoy, engage and extend upon the internet as ‘a common cultural inheritance’. The act also conflicts with section 14 (‘the right to freedom of expression’) of the New Zealand Bill of Rights Act (New Zealand Parliament, 1990) as well as Article 19 (‘the right to freedom of opinion and expression’) of the UN Universal Declaration of Human Rights. New Zealand’s Attorney-General, however, believes the infringement on human rights to be justified by the greater importance of the legislation’s objective, namely ‘to provide for an enforcement regime for instances of file-sharing that infringe copyright’ (New Zealand Human Rights Commission, 2011). In other words, the Attorney-General considers servicing the interests of copyright owners to be of far greater importance than the human rights of file-sharers. Besides file-sharers, many artists, particularly those whose works rely on strategies of appropriation, are almost certainly bound to disagree with this view. There is, after all, a long art historical tradition of appropriation, whose claims to legitimacy today chime with human rights claims in the International Covenant on Economic, Social and Cultural Rights and the Universal Declaration of Human Rights.

Already in the 1890s, the French artist Paul Gauguin had made his way to Tahiti and the Marquesas, painting local scenes of life that may be considered a form of cultural appropriation, while in the early 20th century Pablo Picasso and Kurt Schwitters produced collages that borrowed freely from pre-existing (visual and other) materials. In the 1970s, Richard Prince first began taking photographs of photographs, launching an artistic career that continues to this day, built on the appropriation of others’ work. In New Zealand, Dick Frizzell’s Grocer with Moko (1992; Figure 1) not only copied from tā moko, but also reproduced the face of ‘Mr. Four Square’ from the commercial logo of the Four Square chain of grocery stores, while his Mickey to Tiki Tu Meke (1997; Figure 2) related the Maori Tiki to Disney’s Mickey Mouse. Heather Straka’s (2005) oil paintings, Jesus in Furs (Figure 3) and Love (Figure 4), to name but two, made extensive use of moko depicted in, among others, Gottfried Lindauer’s paintings of Māori. Frizzell and Straka are of course not alone in their sampling of Māori motifs, but belong to a veritable tradition of such cultural appropriation, ⁵ which includes the paintings of Lindauer mentioned above, the photographs of Māori by Samuel Carnell, Theo Schoon’s paintings and gourds using kowhaiwhai (patterns adorning marae rafters) and moko designs and Gordon Walters’ stylized koru. OPEN IN VIEWER

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Figure 2.

Dick Frizzell, Mickey to Tiki Tu Meke, 1997, lithograph.

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Figure 3.

Heather Straka, Jesus in Furs, 2005, oil on board.

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Figure 4.

Heather Straka, Love, 2005, oil on board.

The examples of artistic appropriation of cultural material are raised here to highlight an inconsistency or tension between human rights, such as the right to participate in cultural life and the right to freedom of expression on one hand, and the ownership privileges granted by contemporary copyright regimes, and potentially new instruments for the protection of indigenous arts and culture, on the other. If copyright laws and new cultural rights based protections share the same objective of excluding a certain group from the ability to copy something, the latter must not be misconstrued, however, as a private enclosure of the commons. The protection of tā moko for the benefit of a collective establishes something closer to what we might think of as a Māori commons, a common Māori inheritance, rather than a private property as such; it involves differentiating between different commons. ⁶ The very idea of ‘the commons’ needs clarification as there is a popular tendency to conceive of it in general terms – a universal commons against which all private property may be defined, and to which ‘humanity-as-a-whole’ has a right.

In keeping with assemblage theory, the notion of a universal commons must be rejected as an unhelpful reification. For DeLanda, the only legitimate entities we can speak of are historically individuated assemblages. Instead of a universal commons (a commons-in-general), there are only historically situated commons, the American or New Zealand commons for example, whose interests may converge or diverge in relation to an entire population of such assemblages. The Māori commons coexists with a wider New Zealand commons, and these in turn coexist with a British commons as well as an American commons. These assemblages may well overlap and be traversed by cross-cultural flows, but none should be subsumed under the vague idea of a commons-in-general. To do so would be to ignore the asymmetry of historical relations between, for example, the British and Māori commons, by virtue of which thousands of taonga ended up in British institutions and collections such as the British Museum, largely for the benefit of the British public.

Concluding Discussion

The preceding pages have attempted to tease out a number of complex issues raised by the cultural appropriation of tā moko by an American tattoo artist, Victor Whitmill, and media firm Warner Bros., and to suggest directions for thinking through conflicts between the laws and norms of copyright, and international frameworks for human and cultural rights, using assemblage theory as an ontologically rigorous foundation for cultural analysis. As has already been noted, changes within existing systems of copyright and intellectual property are not necessarily the best way forward, nor is it clear that copyright regimes will be able to accommodate the changes required to accord both respect and protection to large-scale indigenous assemblages such as Māori tribes and their collective forms of artistic and cultural agency. In the end, everything concerning tā moko should ultimately be the prerogative of Māori, in accordance with the Mataatua Declaration (Mataatua Tribes, 1993), which recommends that ‘indigenous peoples should define for themselves their own intellectual and cultural property’ (1.1) and ‘develop and maintain their traditional practices and sanctions for the protection, preservation and revitalization of their traditional intellectual and cultural properties’ (1.6).

The possibility that copyright regimes are too deeply flawed to be salvageable bears further consideration. After all, in the multi-centuried, and in some cases, millennial histories of indigenous arts and cultures, the absence of intellectual property legislation has never meant a lack of motivation or incentive for creation and cultural expression. There is no reason to believe that today’s intellectual property regimes offer any progress or improvement over indigenous systems of artistic and cultural production and preservation. It may even be the case that the supposedly ‘archaic’ gift economies (Mauss, 1966) in which Māori taonga were historically produced and circulated turn out to be better suited to arts and cultural production and exchange. Gift economics contrasts sharply (and yet coexists) with the capitalist logic of intellectual property legislation with its tendency to concentrate resources and capital in private hands (private enclosure of various commons), and deserves further thought in imagining futures for the organization of artistic and cultural practices and commons.

In the ‘spirit of the thing given’, to quote Marcel Mauss (1966: 9–10):

The taonga or its hau – itself a kind of individual – constrains a series of users to return some kind of taonga of their own, some property or merchandise or labour, by means of feasts, entertainments or gifts of equivalent or superior value.

The long awaited Wai 262 report, Ko Aotearoa Tēnei (Waitangi Tribunal, 2011), provides much guidance and food for thought regarding indigenous cultural rights and Anglo-American intellectual property regimes. Filed with the Waitangi Tribunal under the provisions of the Treaty of Waitangi in 1991, Wai 262 is an extensive claim which holds that ‘The Crown’ as treaty partner failed to protect Māori rights in relation to indigenous flora, fauna and cultural intellectual property (including Māori text and imagery) when it acted unilaterally in committing the country to international intellectual property law obligations under the General Agreement on Tariffs and Trade (GATT) and the agreement on Trade Related Aspects of Intellectual Property Rights (GATT: TRIPS). Released after two decades, the report is very specific concerning the conflict between Anglo-American and Māori concepts of intellectual property creation and ownership: ‘Copyright authorship and ownership are very different from the Māori concept of kaitiakitanga, which is founded in concepts of communal responsibility’ (Waitangi Tribunal, 2011: 64).

For Māori, a kaitiaki is a guardian, and kaitiakitanga refers to the practices of guardianship and protection. Kaitiakitanga is closely aligned with Barry Barclay’s (2005: 115) principle of ‘mana tuturu’ or ‘Maori spiritual guardianship’, as used in the Taonga Maori Deposit Agreement at the New Zealand Film Archive. Whereas intellectual property regimes are founded on an individualist concept of ownership, kaitiakitanga is based on a collectivist concept of guardianship. It is because domains over which kaitiakitanga principles apply are protected for collective use and the mutual benefit of people and environment, and not owned by individual persons, that these match up with the idea of a commons. Legislation in New Zealand, enacted on the basis of international GATT and GATT: TRIPS frameworks, fails to address the nature and requirements of kaitiakitanga, for which reason the government of New Zealand (‘The Crown’) is obliged under its Treaty commitments to pursue appropriate remedies. From the perspective of an indigenous artistic tradition, prevailing intellectual property legislation and the GATT and GATT: TRIPS frameworks, at least in the Whitmill v. Warner Bros. case, may well amount to an extension of Anglo-American colonial tendencies into the present day. In this sense, the recommendations for reform of New Zealand laws and policies in Wai 262 are entirely reasonable, especially given the position of Māori as ‘partners’ of ‘The Crown’.

The authors of Wai 262 did not restrict themselves to recommendations for the reform of national laws and policies, but went on to address the globalized dimensions of the problem. The case of Whitmill and Warner Bros. profiting from the ‘traditional cultural expressions’ (TCEs) of Māori, specifically, tā moko, demonstrates the importance for Māori of international legal instruments to prevent individuals such as Whitmill, and corporations such as Warner Bros., from commercializing Māori taonga. The report specifically mentions the World Intellectual Property Organization (WIPO) Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore’s ‘draft principles and objectives for the protection of traditional cultural expressions and traditional knowledge’ of 2011 (Waitangi Tribunal, 2011: 52). According to the IGC (2011: 4) itself, work is now taking place on ‘text-based negotiations with the objective of reaching agreement on a text(s) of an international legal instrument(s) which will ensure the effective protection of GRs (genetic resources), TK (traditional knowledge) and TCEs (traditional cultural expressions)’.

The outcome of Wai 262 is highly significant not only for Māori but also for indigenous populations in other countries, particularly those that share similar communal concepts of guardianship, as it is a ‘test’ of the extent to which a state may recognize the right to cultural self-determination of an indigenous population. What is ultimately at stake is the extent to which the notion of shared sovereignty may be actualized, in which case Māori tribes collectively exercise a form of self-determination, including the recognition of kaitiakitanga as a principle governing the preservation and ‘use’ of various taonga including tā moko, alongside the sovereignty of ‘The Crown’. However, the manner in which the government of New Zealand responds to Wai 262 remains to be seen. As for the construction of an international legal instrument for the protection of the TCEs of Māori and other indigenous peoples, time will tell what form such an instrument takes, and reveal its effectiveness in preventing future exploitation of indigenous TCEs across different sovereign jurisdictions. If successfully implemented, such an international instrument has the potential to considerably alter the landscape of artistic and cultural production at an international scale.

Assemblage theory provides a theoretically rigorous and coherent framework that is well suited to working with the complexities involved in the protection of traditional cultural expressions, because it recognizes individuality at multiple levels of scale. In this case, it recognizes that individual iwis or tribes possess distinctive identities, are ontologically equivalent to individual persons (and deserve legal recognition and protections as such), and have concepts of creation and artistic agency that diverge sharply from those in prevailing intellectual property laws. Assemblage theory also furnishes a lens by means of which different parties, including state assemblages and indigenous peoples such as the Māori of New Zealand, may discern pathways diverging from the laws, norms and ‘universalism’ of ‘the international community’, together with its intellectual property framework, GATT: TRIPS. It makes it possible to differentiate between different commons, and to identify, with a view towards restorative or reparative justice, the historical circumstances corresponding to asymmetrical relations between different commons, particularly between those of colonizing nations and those of the colonized. Finally, assemblage theory issues a challenge to seriously rethink the ontological foundations of both the laws in question and the individuals or agents whose interests are implicated, whether these individuals are persons or peoples. Rising to this challenge is, to borrow the words of Rosemary Coombe (1995: 794), ‘the ethical and political responsibility of legal scholars in contemporary contexts characterized by cultural intersections, conflicts of meaning, and ambiguities of identity and community’.

As a concluding point, it should be noted that while a number of scholars besides DeLanda have written on the concept of the assemblage in recent years, for example, Alliez (2004), Phillips (2006), Collier (2006), Venn (2006), Marcus and Saka (2006) and Harman (2008), only Alliez, Phillips and Harman appear to have grasped its ontological significance, that is, the assemblage/agencement as concept lays the foundation for determining what is and is not real and, therefore, what is and is not legitimate to admit in any cultural analysis or philosophy. Next to DeLanda (2006, 2010), Alliez’s (2004) is one of the more rigorous treatments of the concept as created by Deleuze and Guattari; for him, their philosophy is fundamentally an ontology or onto-ethology. Regarding DeLanda’s assemblage theory, this borrows from Deleuze and Guattari but also departs significantly from their work. Harman (2008) is one of a handful of authors to have recognized the importance of DeLanda’s ‘new philosophy of society’ as a novel ontological framework, despite the fact that he – intentionally or unintentionally – misunderstands a number of aspects such as DeLanda’s notion of the virtual. It is precisely as an ontology, that is to say, a means of differentiating the real from the unreal, that assemblage theory realizes its usefulness in cultural analysis, for all claims and contention are always founded on assumptions about reality, in which case it is better for such assumptions to be made explicit and, consequently, for their validity to be evaluated.