By Amber Lee.

The history of fashion brands appropriating the culture of minorities resurfaces at each Fashion Week. Just to name a few: in 2011, American retail company Urban Outfitters came under fire after it launched its Navajo-themed clothing and accessories line, which some members of the indigenous community found to be “culturally offensive.”[1] Three years later, French designer Isabel Marant was accused of plagiarizing the traditional Tlahuitoltepec blouse of the indigenous Mixe community in Mexico.[2] In 2017, the public similarly gave Canadian fashion brand Ports 1961 a difficult time when it featured models with shirts bearing “ONLY LOVE MATTERS” and “EVERY COLOR MATTERS,” slogans that social media users felt belittle the message of the Black Lives Matter movement and improperly appropriate the cultural expressions of a minority group.[3] And more recently—in January of 2020—Comme des Garçons became the latest fashion brand placed under international scrutiny for putting cornrow wigs on white models as part of its Paris Fashion Week show.[4] Responding to online criticisms of his fashion choice, hairstylist Julien d’Ys apologized, but not before clarifying that he never intended to “hurt or offend anyone, ever.”[5] He defended the use of the cornrow wigs on these models, stating that it was an inspiration and an homage to an Egyptian prince.[6] Perhaps Julien d’Ys really was inspired, but it is hardly surprising that the public reacted negatively to the hairstylist’s lack of sensitivity in appropriating the culture of another.

Ahead of the 2019 New York Fashion Week, the Council of Fashion Designers of America asked its designers to “remember to promote diversity and inclusion, on and off the runway.”[7] Still, the line between celebrating a minority’s culture and appropriating it is easily crossed.

Cultural Appropriation Defined

Nestled in the blurry divide between an impermissible appropriation—that is, a taking that could subject the taker to legal sanctions— and a permissible inspiration is “cultural appropriation,”[8]something that Urban Outfitters, Isabel Marant, Comme des Garçons, and other fashion houses seem to have done. Cultural and legal scholars alike have written about the meaning of cultural appropriation, which comes down to this basic definition: cultural appropriation is something that happens when “a person or group of a certain culture (‘the appropriator’) ‘takes’ certain tangible or intangible objects (‘cultural products’) from a different culture (‘the source community’).”[9]

Professor Sally Engle Merry of NYU Law describes cultural appropriation as an improper recontextualization of a cultural product,[10] which likens to “taking the tune and playing it in a different key or at a different tempo so that it becomes something different, yet still the same.”[11] While this could very much be a well-intentioned act that treads on the brink of cultural inspiration, the danger of such taking is that the cultural product might one day be completely disassociated from its source community, a result that is akin to the erasure of a community’s cultural identity.[12] Another way of characterizing cultural appropriation is that it is a manifestation of power imbalance deeply rooted in colonialism and the historical subordination of certain minority groups.[13] One sees this in the oft-reported controversies involving the use of Native American headdresses as part of a costume or a fashion show.[14] The launch of the Navajo-themed collection by Urban Outfitters (a publicly-traded retail company headquartered in Pennsylvania, U.S.A.), which culminated in a legal struggle between the retail company and the Navajo Nation, is another example of this. It is also unfortunately the case that source communities are often left out of the entire production process while appropriators benefit financially from the taking of cultural products without attributing their “inspiration” to these source communities.[15] Isabel Marant, for example, did not seek the Mixe community’s permission to use patterns from the Mixe’s traditional Tlahuitoltepec blouse called the huipil on her Étoile line, nor did she outsource the creation of the blouse to Mexico.[16] Instead, they were manufactured in India and sold for a hefty price of $365 each.[17]

It would seem that for fashion industry players, claiming inspiration to justify a cultural taking is an easy way out for what could constitute a cultural or even an impermissible appropriation. The source communities, who risk losing out on the economic front of a fashion venture and, at the same time, having their heritage cherry-picked and erased for the benefit of their appropriators, are truly the disadvantaged party in this scenario. In other words, cultural appropriation in fashion monetizes years of traditions, know-how, family business, and symbolism behind cultural apparel.

Is the Existing Legal Framework Sufficient to Safeguard Cultural Heritage from Appropriation?

Writing specifically to address the issues of cultural appropriation and the Native people, Professor Rebecca Tsosie––an Arizona State University professor specializing in Federal Indian law—points out that the Native people’s cultural and spiritual interests, which are intrinsically tied to land, often do not fit neatly in the existing legal structure of property law.[18] Even tangible cultural resources seem to find a difficult place in the traditional theory that props up real property, personal property, and intellectual property since the concept of “property” and “culture” tend to conflict with one another—the former denoting the idea of individual ownership, while the latter standing for something that is shared and held collectively.[19] Notwithstanding the form of the cultural resource, whether it be tangible or intangible, the difficulty of finding an effective legal tool to shield against cultural appropriation becomes apparent for the reasons set forth below.

Copyright laws

In an effort to curb cultural appropriation, a source community might turn to copyright laws for protections. However, cultural products and expressions such as designs, stories, and songs are held collectively within a community and passed down from generation to generation, which means not one single individual can claim authorship of any given work.[20] This in turn creates a barrier for source communities seeking copyright protection for two reasons. First, the date of the author’s passing is a requisite information in determining the term of protection under the Copyright Act of 1976.[21] Second, even though the Copyright Act affords protection for anonymous work, the term of its protection is contingent upon the year of the work’s publication.[22] Without an ascertainable author and a date of publication, it is simply impossible for anyone to determine how long a cultural product might be protected under the Copyright Act. Further, even if a cultural product was once given intellectual property protections, any term of protection would have already lapsed due to the passage of time.[23] For these reasons, cultural products often fall into the public domain.[24]

Failing to afford legal protections to source communities, copyright law has also insulated appropriators seeking copyright protection for works that incorporate unprotected or unprotectable cultural products.[25] This is prevalent enough in the history of the United States’ music industry where, for example, white musicians appropriated and copyrighted music first innovated by black musicians.[26] Fortunately, the abuse of copyright law by an appropriator does not always guarantee a favorable result to the appropriator. Recall the controversy involving the French fashion designer Isabel Marant and her Étoile line, which incorporated patterns from the Mixe’s traditional huipil. Not only did the controversy spark reactions from the social media community condemning the appropriation, but it also prompted the Mixe community to ask for reparation damages, the removal of Marant’s dress from her collection, and Marant’s acknowledgment that the patterns on Marant’s dress were taken from the huipil.[27] And perhaps as an act of goodwill, the Mixe community invited her to visit the community so that she could meet the women who have been instrumental in the continuation of the tradition of making these huipil blouses.[28]

The irony of the Marant controversy is that the same dress soon became roped into a copyright dispute with Antik Batik, another French fashion label that claimed ownership of the design.[29] As a defense, Marant argued that Antik Batik could not have owned the designs because the designs originated from the Mixe community in Mexico.[30] A Paris court eventually ruled against Antik Batik, holding that neither Antik Batik nor Marant could hold copyright of the design that belongs to the Mixe people.[31] Had the court ruled in favor of Antik Batik, Antik Batik would have been granted legal ownership of the huipil designs, while the Mixe community would have lost control over a piece of their heritage.

Trademark law

Trademark law is another avenue that a source community might turn to for legal protection against cultural appropriation. In 2012, the Navajo Nation (represented by the Navajo Nation Department of Justice and Keller Rohrback, L.L.P.) filed a complaint against Urban Outfitters alleging that the retailer’s use of “Navajo” and “Navaho” in their products, which included items such as “Navajo Nations Crew Pullover” and “Navajo Hipster Panty,” violated federal and state trademark laws.[32] At the time of the complaint, the Navajo Nation had 86 registered trademarks on the Navajo name and made more than $500 million in sales of goods bearing the Navajo name.[33] Finding that the Navajo Nation had sufficiently alleged facts to support their fair use and trademark dilution claims as well as to show that the Navajo Nation’s mark is not generic, the district court denied Urban Outfitters’ motion to dismiss.[34] The legal battle came to a conclusion in 2016 when the Navajo Nation and Urban Outfitters agreed on a settlement, which included a supply and license agreement for a collaboration between the two parties.[35]

Navajo Nation v. Urban Outfitters, Inc., 935 F. Supp. 2d 1147, 1161–1169 (D.N.M. 2013). Exhibit A to the Complaint filed on Feb. 28, 2012, available here.

Outside of the United States, the Maasai—an Indigenous group living in Kenya and Tanzania—also look to trademark laws to better control the use of their cultural products by commercial users.[36] As part of an ongoing effort, the Maasai IP Initiative Trust (which represents the Maasai in Kenya and Tanzania both) has collaborated with Washington-based advocacy group, Light Years IP, to recover trademarks from major corporations.[37] If the Maasai’s trademark rights are successfully enforced, licensing revenues are estimated to go as high as $10 million a year.[38] According to the Maasai IP Initiative, this has the potential to benefit the Maasai tremendously because licensing revenues could be used to support the local community both socially and economically.[39]

Although it would appear that source communities might find solutions to the issue of cultural appropriation in trademark laws, scholars have noted their shortcomings as effective legal tools.[40] For example, a source community pursuing the cancellation of an appropriator’s trademark that uses that community’s cultural product might find themselves stumbling back to square one when, at the end of a successful cancellation proceeding, the appropriator becomes entitled to common law protection for her now unregistered mark.[41] And if an appropriator loses the common law protection, the mark would be readily available for widespread third-party uses—surely, an even more undesirable outcome for the source community.[42]

Another barrier for source communities seeking to have their cultural products recognized as valid trademarks is that the law requires the cultural products to be “used in commerce” and have met the “distinctiveness” requirement.[43] For source communities that succeed in meeting these two requirements, there is yet another obstacle—were they to bring infringement claims against appropriators for their use of the source communities’ marks, these source communities might find it challenging to raise dilution claims due to the lack of nationwide recognition of the marks.[44]

Calls for Reform

In 1991, six claimants lodged a claim with the Waitangi Tribunal, which is a permanent commission established in 1975 by the New Zealand Parliament tasked with making inquiries and recommendations on claims—allegations that the Crown has breached the Treaty of Waitangi—affecting the Māori-Crown relationship.[45] In a nutshell, the Wai 262 claim (i.e., the 262nd claim registered with the Waitangi Tribunal) concerns the Māori’s culture, identity, and traditional knowledge and their place in New Zealand’s laws, government policies, and practices.[46] Namely, it “concerns who controls Māori traditional knowledge, who controls artistic and cultural works such as haka and waiata, and who controls the environment that created Māori culture.”[47] Twenty years later, the Waitangi Tribunal released a comprehensive report on the Wai 262 claim, observing that New Zealand’s intellectual property regime protects indigenous works only to a limited extent.[48] Therefore, the tribunal recommends amending existing laws to include two mechanisms by which the general public can “object to derogatory or offensive public use of taonga works, taonga-derived works, or mātauranga Māori” and that the kaitiaki (guardian) is empowered to object to non-derogatory commercial use of taonga works or mātauranga Māori, but not taonga-derived works.[49]

In a similar effort to address issues of cultural appropriation in the fashion industry, Law Initiative 5247 was introduced by Congressman Leocadio Juracan to seek collective recognition and intellectual property rights for the Mayan weavers in Guatemala.[50] Though the proposal has met with general support from indigenous lawmakers, there are concerns over the application of modern laws to a traditional practice that has spread throughout the region over the years.[51]

All things considered, any legal reform that strives to enhance protection for cultural products must balance the competing interests of safeguarding a source community’s cultural identity with the need to preserve the free flow of ideas in support of cultural exchange. After all, the “cross-pollination of cultures is an essential feature of multicultural and non-segregated societies.”[52]

Conclusion

Despite the legal hurdles, not all is lost in the source communities’ effort to prevent their cultural heritage from being unfairly monetized by appropriators. The Navajo Nation and the Maasai, after all, were able to work out licensing agreements that would not only benefit both the source community and its appropriator financially, but would also allow the source community to assert some degree of control over the use of their cultural product in fashion retail.


Endnotes:

  1. Christina Ng, Urban Outfitters Under Fire for ‘Navajo’ Collection, ABC News (Oct. 12, 2011), https://abcnews.go.com/US/urban-outfitters-fire-navajo-collection/story?id=14721931.
  2. Scarlett Conlon, Isabel Marant Accused of Plagiarism, Vogue (June 19, 2015), https://www.vogue.co.uk/article/isabel-marant-plagiarism-claim-santa-maria-tlahuitoltepec-oaxaca.
  3. Alyssa Hardy, Ports 1961 Only Love Matters Shirts Spark Backlash, Teen Vogue (June 20, 2017), https://www.teenvogue.com/story/ports-1961-black-live-matters-only-love-matters-shirts.
  4. Comme Des Garçons: Row over white fashion models’ cornrow wigs, BBC News (Jan. 19, 2020), https://www.bbc.com/news/world-51166873.
  5. Id.
  6. Id.
  7. Council of Fashion Designers of America, DIVERSITY & INCLUSION AT NEW YORK FASHION WEEK (January 28, 2019), https://cfda.com/news/diversity-inclusion-at-new-york-fashion-week.
  8. See Brigette Vézina, Curbing Cultural Appropriation in the Fashion Industry, CIGI Papers No. 213, 9 (2019).
  9. See Sari Sharoni, The Mark of a Culture: The Efficacy and Propriety of Using Trademark Law to Deter Cultural Appropriation, 26 Fed. Circuit. Bar. J. 407, 410 (2017).
  10. See Rosemary J. Coombe & Nicole Aylwin, The Evolution of Cultural Heritage Ethics via Human Rights Norms, in Dynamic Fair Dealing: Creating Canadian Culture Online 201, 202 (Rosemary J. Coombe et al. eds., 2014).
  11. See Sally E. Merry, Law, Culture, and Cultural Appropriation, 10 Yale J.L. & Human. 575, 585 (1998).
  12. See Vézina, supra note 6, at 9–10.
  13. Id.
  14. Jessica Derschowitz, Victoria’s Secret Apologizes for Native American-inspired Look at Fashion Show, CBS News (Nov. 12, 2012), https://www.cbsnews.com/news/victorias-secret-apologizes-for-native-american-inspired-look-at-fashion-show/.
  15. See Vézina, supra note 6, at 7.
  16. Theresa Avila, Indigenous Women are Fighting Back After a Famous Fashion Designer Stole their Culture, Mic (June 19, 2015), https://www.mic.com/articles/121008/this-designer-s-mexican-dress-is-a-lesson-in-cultural-appropriation#.GfqhuQnbU.
  17. Id.
  18. See Rebecca Tsosie, Reclaiming Native Stories: An Essay on Cultural Appropriation and Cultural Rights, 34 Ariz. St. L.J. 299, 307–308, 310 (2002).
  19. See Kristen A. Carpenter et al., In Defense of Property, 118 Yale L.J. 1022, 1033 (2009).
  20. See Vézina, supra note 6, at 4–5.
  21. See id. at 5; see also Copyright Act of 1976, 17 U.S.C. § 303 (2018).
  22. 17 U.S.C. § 302–303.
  23. See Sharoni, supra note 7, at 417.
  24. See id.
  25. See id. at 416.
  26. See id.
  27. See Vézina, supra note 6, at 3.
  28. Id.
  29. Paulina Szmydke, A Paris court ruled against Antik Batik, which had claimed rights on patterns inspired by the Tlahuitoltepec community in Mexico., WWD (Dec. 7, 2015), https://wwd.com/business-news/legal/isabel-marant-plagiarism-antik-batik-mexico-tlahuitoltepec-paris-10291754/.
  30. Id.
  31. See Vézina, supra note 6, at 3.
  32. Complaint for Injunctive Relief and Damages (Jury Trial Demanded) at 12, Navajo Nation v. Urban Outfitters, Inc., 935 F. Supp. 2d 1147 (D.N.M. March 26, 2013) (No. 1:12-cv-00195).
  33. Id.
  34. Navajo Nation v. Urban Outfitters, Inc. 935 F. Supp. 2d 1147, 1161–1169 (D.N.M. 2013).
  35. See Vézina, supra note 6, at 4.
  36. See id. at 5.
  37. The Maasai Cultural Brand, http://lightyearsip.net/the-maasai/, (last visited June 15, 2020).
  38. The Tanzania People That Have Been Copied by DVF, Land Rover & More, TFL (July 19, 2017), https://www.thefashionlaw.com/tanzania-tribe-has-been-copied-by-dvf-land-rover-more/.
  39. See supra note 35.
  40. See Sharoni, supra note 7, at 444–446.
  41. See id. at 436.
  42. See id. at 436–437.
  43. See id. at 437.
  44. See id.
  45. Ko Aotearoa Tēnei: Report on the Wai 262 Claim Released, Waitangi Tribunal (July 2, 2011), https://www.waitangitribunal.govt.nz/news/ko-aotearoa-tenei-report-on-the-wai-262-claim-released/.
  46. Id.
  47. Id.
  48. See Ko Aotearoa tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity, Vol. 1., 63, (2011), https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_68356416/KoAotearoaTeneiTT2Vol1W.pdf.
  49. Id. at 99.
  50. Textiles are the books that the colony was not able to burn, Thousand Currents (May 10, 2017), https://thousandcurrents.org/textiles-are-the-books-that-the-colony-was-not-able-to-burn/.
  51. Santiago Sacatepéquez, Pride and profit: Why Mayan weavers fight for intellectual property rights, Christian Science Monitor (March 27, 2019), https://www.csmonitor.com/World/Americas/2019/0327/Pride-and-profit-Why-Mayan-weavers-fight-for-intellectual-property-rights.
  52. See Vézina, supra note 6, at 7.

About the Author: Amber Lee is a Summer 2020 Intern at the Center for Art Law. She is in the Class of 2021 at the University of Florida Levin College of Law and received her undergraduate degree in visual arts and emerging media management from the University of Central Florida. She can be reached at lee.amber@ufl.edu.