Re: sovereign nations & copyright law

On 07/20/2000, Jayne Sebby <jsebby[_at_]unlnotes.unl.edu> wrote:
>
> Are citizens of sovereign nations within the U.S. (ie: the various
> Indian Tribes) subject to U.S. copyright law? Does it make any
> difference whether the material is created and fixed within
> reservation land or on U.S. soil?
>
> We've had an interesting question come up at work -- a client wants
> to use some native music, recorded during a recent pow wow, on a
> videotape that will be used as a fund-raiser for a non-profit native
> educational entity ("We'll send you a CD of the song."). While we
> have not yet heard the recording, we believe it is traditional
> music, probably composed a long, long time ago and passed along
> through the generations. Allegedly it is neither sacred music nor
> specific to any particular tribe or group. We don't know the
> circumstances under which the recording was made or what rights the
> producer actually holds (although we are working to track that down).
> The client claims he's covered under the "fair use" exception to
> U.S. copyright law. My first question was does U.S. copyright law
> even apply here?

When it comes to infringement, Indian Tribes are currently NOT subject to copyright law. The Second Circuit recently held that Indian Tribes have sovereign immunity from suits for copyright infringement. See Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343 (2d Cir. 2000). Unlike the sovereign immunity of the states, however, Congress could lawfully subject Indian Tribes to U.S. Copyright Law, if they choose to do so.

Jayne's question is somewhat different, however; she wants to know if Indian Tribes can bring a suit for infringement, and if they are subject to the same limitations as other U.S citizens in doing so. I am not an expert in this area, but I think general principles of international law apply. Under the principle of national treatment, it would not matter where the work was fixed; what matters is where the allegedly infringing activity is taking place. If the work is being allegedly infringed in the U.S., I believe U.S. law applies. If the work is allegedly being infringed on the reservation (by someone other than the tribe), tribal law might apply.

But Indian jurisdiction is one of the most complicated areas of U.S. law; I'd suggest you consult an expert.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Thu Jul 27 2000 - 18:47:08 GMT