A Consolidated Assessment of the Legal Protection of Folklore

23 Wake Forest J. Bus. & Intell. Prop. L. 272

The legal protection of folklore has been debated for several decades. Many countries have legislated specifically to protect folklore. Others have not. The fact that some countries have chosen not to protect their folklore legally has created a dichotomy within the legal system for protection of such intellectual property (IP). Western countries have shied away from protecting folklore, while non-Western states, on the whole, have intently adopted IP or sui generis protection regimes for folklore. This article explores why this is the case by focusing on Kenya as an example of a jurisdiction that protects folklore and the United States (U.S.) as one that does not.

While the U.S. does not provide legal protection for folklore, this does not mean that there is no folklore in the U.S. In fact, the country is rife with instances of folklore. The term folklore was coined by the British writer William Thoms in 1846. For Thoms, folklore included customs, manners, superstitions, observations, ballads, proverbs, and so on; he summarized the term as, as its name suggests, the lore of the people. Examples of American folklore include, among many others, narratives around historical figures such as Christopher Columbus and Davy Crockett; folk music such as the African-American Spirituals; folk songs, for instance, Take Me Out to the Ball Game; historical events like the Boston Tea Party and the Battle of Gettysburg and cultural icons such as Uncle Sam.

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