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Assignment 6: Getting past “either/or”

Did Lego improperly appropriate Maori culture in their creation of Bionacle?

To give a little bit of background, In 2001, several Māori tribal groups from New Zealand threatened legal action against Lego for allegedly trade marking Māori words used in naming the Bionicle product range. In response, a Lego spokesperson stated that only the term “Bionicle” had been trademarked. Lego agreed to stop commercial use of the Māori language after sending an executive to meet with Māori representatives in New Zealand.  Some Māori terms used by Lego were changed, such as “Huki”, which was changed to “Hewkii”, and “Tohunga”, which was changed to “Matoran”. Within the fictional Bionicle universe, these changes were explained by the introduction of a “Naming Day” holiday, in which characters who have done heroic deeds for their village are honored by having the spelling of their name changed (though the pronunciation remains the same). However, a number of Māori terms such as “Toa”, which means “warrior”, “Kanohi”, which means “face”, and “Kopaka”, which means “cold”, were not changed. Since this controversy, Lego has not made any more names that are common terms in other living languages. From a legal perspective did Lego improperly appropriate Maori culture in their creation of Bionacle? Well, that is really up to how you interpret copyright and trademark law.

Copyright protects the expression of ideas or information − not the ideas or information itself. For example, if you write a novel, the text will be protected, but not the ideas or plot. Someone could write their own novel using your ideas, without necessarily infringing copyright. Similarly, if two authors independently create a similar work based on the same idea, without copying from each other or from someone else, there is no copyright infringement. Some works do not attract copyright protection. For instance, names, titles, single words and headlines are usually too small or unoriginal to be protected by copyright.   For more information on New Zealand copyright law visit: http://www.med.govt.nz/

The New Zealand Trade Marks Act has a section preventing the registration of trademarks that would be offensive to Maori. The term “trade mark” is defined in section 5 of the Act as meaning “any sign capable of being represented graphically and distinguishing the goods or services of one person from those of another person”. A “sign” is defined in section 5 of the Act as including “a brand, colour, device, heading, label, letter, name, numeral, shape, signature, smell, sound, taste, ticket, or word; and any combination of signs”. A trade mark is often referred to as a “logo”, “brand” or “brand name”. That does not mean that such trademarks could not be used in the marketplace, it just means that they cannot enjoy the same level of protection afforded to registered trademarks. For more information on New Zealand trade mark law visit http://www.med.govt.nz/

So again did Lego improperly appropriate Maori culture in their creation of Bionacle? Strictly speaking it was lawful to use aspects of Maori culture, or any other culture for that matter, so long as it was done in a way which does not offend existing legal rights or breach normal advertising standards. For example it would not have been lawful to copy Maori artwork which, like any other artwork, is subject of copyright. There may also be certain Maori words or phrases that function as trademarks and to use those might be unlawful, not because they derive from Maori culture, but because they operate as brand names just like any other brand name.

Lego did however did recognize that: while it may be lawful to use aspects of Maori culture for branding it is prudent to have regard for the sensitivities of Maori before doing so. This may mean only using aspects of Maori culture in a respectful way and so as to avoid unnecessary offense and bad press. A brand which offends the sensibilities of a significant section of the New Zealand public is unlikely to be as successful and enduring as it would otherwise be. In the video “Guarding the family silver,” Lego mentions that they meant to be respectful, but they did not know who to contact with regards to using the Maori names properly. This goes along with a section mentioned in Digital Media Ethics, “anyone knows who has tried to be a respectful guest in an “Other” culture, it is not always easy to know what to do, even if you believe yourself well informed about important rules, values, practices, etc[page 108].”

 


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