Simon Says: Cultural expression and traditional knowledge deserve better

Article written by: Thomas HuthwaiteSusan Hur    |    Thursday 6th December 2018

Cultural expression and traditional knowledge are tricky topics in intellectual property, and a potential minefield in public relations. Most often, cultural expression and traditional knowledge do not fit neatly into established legal boxes, such as trade marks, copyright, designs, or patents. Instead, those expressions considered important enough are occasionally provided with sui generis recognition – such as that provided for the Haka Ka Mate under the Haka Ka Mate Attribution Act 2014,[1] and certain 28th Māori Battalion protected words and emblems.[2]


Recently, popular South Korean boy band “NCT 127” used a common ending from Māori karakia (prayer) at the start a song entitled “Simon Says”. The Māori words are “Tūturu o whiti whakamaua kia tina”, which can be literally translated as “make it tangible, make it practical”.  However, the phrase really refers to considering a message to be embodied in practice. At a fundamental level, another translation might be “amen”.

Those words are now being used in a K-pop song, the lyrics of which also recite: “Simon Says we’re a real vibe killer / We don’t need those words from that time / We don’t play no mind...”  There is no Māori or New Zealand reference, and other than having a dramatic effect, the karakia has no relevance to the song.

“Simon Says” immediately received a huge amount of backlash from Māori and New Zealand public at large – including an array of angry tweets and online comments. The specific sample used at the beginning of the song was taken from an online video showing a haka performed at a private wedding. The agency in charge of NCT 127, SM Entertainment, has since clarified that clearance for that particular part of the video was in fact given by the wedded couple, and that NCT 127 did not mean to offend anyone. It is reported that the wedded couple are in fact Māori, but it appears that no consultation was made with iwi, and it is unknown whether the couple were paid for the sample.

For many, it is still disappointing that broader research and consultation were not entered into, and that the band has not since offered to remove the sample entirely. Māori rights advocate, Aroha Mead, says the phrase is “part of a long-held collective cultural tradition of Māori…There has been no offer to remove that part of the song from the band's management, which would have been the ideal outcome."

We have previously written on the unauthorised use of Māori words and designs in relation to commercial products, such as HEITIKI for infant formula, and Mike Tyson’s instantly recognisable tattoo design in the blockbuster film The Hangover Part 2. The use in each of these cases also received heavy criticism for the “cultural misappropriation”. However, as in those cases, the karakia used in “Simon Says” attracts no trade mark or copyright protection, so there appears no legal basis for preventing its use – even if culturally inappropriate. We have come no further to generally recognising cultural expression and traditional knowledge as intellectual property.

A glimpse of hope for traditional knowledge may be seen in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP),[3] which encourages member parties to improve the treatment of indigenous property and knowledge in intellectual property systems overall. However, the only other mention of “Cooperation in the Area of Traditional Knowledge” (Article 18.16) specifically relates to traditional knowledge associated with genetic resources.

“Simon Says” again highlights the various issues around trying to fit cultural expression and traditional knowledge into our existing system. Even though SM Entertainment thought it had obtained permission for the use of the sample from the wedding couple, traditional knowledge typically does not have “one exclusive owner”. Furthermore, experts have made different statements about what would have sufficed to appropriately recognise Māori culture. Considering the Haka Ka Mate Attribution Act 2014 by way of analogy, a baseline for appropriate recognition would likely include proper research and attribution, if not consultation with a local expert.

Those wishing to use cultural expressions or traditional knowledge for commercial gain should consider the potential legal and public relations ramifications of doing so, particularly where the relevance of the cultural expression is dubious.


 

[1] https://www.baldwins.com/news/traders-to-acknowledge-the-source-of-the-haka-ka-mate

[2] https://www.baldwins.com/news/update-legislative-protection-for-the-28th-mori-battalion

[3] https://www.baldwins.com/news/cptpp-to-enter-into-force-here-are-its-likely-changes-to-new-zealand-ip-law; also noting that while New Zealand is a member of CPTPP, South Korea is not.

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