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Scholars have long contemplated how the effects of colonialism have permeated even race “neutral” laws. This Article scrutinizes the ways Eurocentric copyright systems have failed to protect, and have even encouraged, the unauthorized uses of indigenous heritage in derivative subject matter, exposing how settler colonialism in copyright law has entrenched an unequal hierarchy among communities seeking copyright protection. Due to its ephemeral nature, intangible cultural heritage constantly faces the threat of exploitation by dominant cultures. The intangible heritage of indigenous groups has been particularly vulnerable to illicit and uncompensated commodification. Intangible heritage, such as oral histories and traditional dances, is often of great social, psychological, and political importance for indigenous communities. The current national and international legal regimes have failed to protect indigenous communities from the misappropriation of their cultural resources.

Building on a comparative analysis of the fixation requirement in other countries, this Article proposes a reformation of the “fixation” requirement in American copyright doctrine, which requires a work to be “sufficiently permanent” for a period of “more than a transitory duration.” By allowing authors to establish copyright in ephemeral works, communities may be able to protect more effectively their intangible cultural heritage from commodification and misappropriation. This Article joins the call for reconsidering how copyright law reinforces structural inequities and proposes a novel solution. This Article is the first in legal literature to apply the process of desettling to a legal problem derived from settler colonialism. Through the desettling of fixation in copyright law, true “progress” can be realized.