Between January 6 and 8, 2010, several Mexican media, such as the Mexico City-based newspapers La Jornada and El Universal informed that the Instituto Nacional de Antroplogía e Historia or National Anthropology and History Institute (INAH) fined the operator of the well-known chain ‘Starbucks’ for “using prehispanic images in some mugs offered in sale at its premises, without proper authorization”.

This case has been incorrectly identified as an intellectual property infringement case. Actually, this matter is not related to intellectual property or copyright, but to the special regulations that govern the use and property of the pieces and objects created by the native cultures settled in Mexico before the arrival of the Europeans, generically known as prehispanic pieces and cultures.

The use of the images and devices reproducing prehispanic monuments, objects and art are governed by a federal statute named Ley Federal sobre Monumentos y Zonas Arqueológicas, Artísticos e Históricos or Federal Law regarding Archaeological, Artistic and Historic Monuments and Zones (Monuments Statute). Section 27 of the statute states that all objects and buildings produced by civilizations in the Mexican territory before the arrival of the Spaniards (Olmec, Maya, Zapotec, Toltec, Aztec, among many others), as well as the human, botanical and animal remains, related to such civilizations, shall be considered as “archaeological monument”. 

The reproduction of any “archaeological monument” for commercial purposes requires an authorization from the INAH, and payment of a fee.

However, as stated above, the restrictions for the use of the copies of the “archaeological monuments” are not related copyright; the authors of such ancient works, most of them anonymous, died centuries ago, and the works are no longer subject of copyright protection; they are of public domain. In spite of the fact that the “archaeological monuments” are in public domain, the federal law does not allow its free use. It is a public order restriction, associated to the “research, protection, preservation, restoration and recovery of the historic, artistic and archaeological monuments” (as the statute expressly stipulates). I wonder if not allowing the free use and copying of the “archaeological monuments” actually helps to achieve any of the above-objectives.

It is important to highlight that the fee that should be paid for the authorization to use images and reproductions of “archaeological monuments” (regardless who is the owner of the actual copied piece) is in the benefit of the federal government; it is not a royalty in the benefit of the author, heirs or some sort of assignee (community or ethnic group).

The statute only imposes certain conditions to the commercial reproduction of “archaeological monuments”, so anyone may make a works based on an archaeological object or building (by means of a picture, drawing, sculpture or engraving), and such work would be copyright-protected in the extent of its originality. If the reproduction of the “archaeological monument” is for commercial purposes in Mexico, it would be necessary to obtain the authorization and pay the fee to the INAH, regardless any additional authorization from the copyright-holder of the reproduction.

The restrictions and fees stated in the Monuments Statute are valid only in Mexico, although it is known that some Mexican government agencies have tried to enforce them out of Mexico. If any person decides to reproduce and commercialize outside Mexico the image of an “archaeological monument”, there is nothing INAH may do to prevent or oppose such commercialization or demand the payment of a fee. Nevertheless, it would be important not to forget that the reproduction of the “archaeological monument” may have an author, and that such author may be the holder of a copyright enforceable in Mexico or abroad.

Finally, I do not have enough information about the actual liability of the Starbucks Mexican operator, as seller of the mugs, and of the supplier of said mugs, due infringement of the Monuments Statute. However, any person that, in one way or the other, profits from images and reproductions of archaeological pieces and buildings in Mexico, should be careful of having the proper authorization from INAH. Profiting from the images and reproductions of “archaeological monuments” is legal in Mexico, but it requires some paperwork.