A Tort of Misappropriation of Culture

Jayden Houghton "A Tort of Misappropriation of Culture" (2024) 29 Torts Law Journal

27 Pages Posted: 10 Jun 2024

See all articles by Jayden Houghton

Jayden Houghton

University of Auckland - Faculty of Law

Date Written: 2024

Abstract

Cultures are regularly misappropriated without legal recourse. Whilst the World Intellectual Property Organization is developing an international framework to protect culture, its progress is slow. This article proposes a tort of misappropriation of culture, using the tort of misappropriation of personality, which has been recognised in the United States, and judicially considered but not yet recognised in New Zealand, as a template for the tort. First, it identifies the legal gap by explaining how New Zealand’s recognised torts and relevant statutes fail to protect culture from misappropriation. Secondly, it explains the tort of misappropriation of personality. Thirdly, it outlines elements, defences and remedies for a tort of misappropriation of culture. Finally, it applies the tort in two case studies. The article will be of particular interest to scholars and lawmakers in common law countries where Indigenous peoples are calling for enhanced protections for their knowledges and cultures.

Keywords: Tort, Misappropriation, Treaty of Waitangi, Tikanga Maori, Traditional Knowledge, Traditional Culture

JEL Classification: K10, K13

Suggested Citation

Houghton, Jayden, A Tort of Misappropriation of Culture ( 2024). Jayden Houghton "A Tort of Misappropriation of Culture" (2024) 29 Torts Law Journal, Available at SSRN: https://ssrn.com/abstract=4823316

Jayden Houghton (Contact Author)

University of Auckland - Faculty of Law ( email )

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HOME PAGE: http://profiles.auckland.ac.nz/jayden-houghton

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