Innovations in Protecting Art and Design: Placing Mexico’s recent ban on cultural appropriation in greater context

April 27, 2023

 By Natalie Glitz Grumhau

“Self Portrait as a Tehuana” (Frida Kahlo 1943). Frida Kahlo, Mexican mestiza artist, has been accused of committing cultural appropriation of indigenous Mexican communities, like the Tehuana, as well as being appropriated and commodified herself for her Mexican heritage. The line between inspiration and appropriation can be fine, but Mexico is now attempting to demarcate it clearly to protect its many indigenous communities.

Introduction

‘Cultural appropriation’ has become a hot topic in the last decade, due primarily to the rise of the internet and global sharing of information.^[1] Such appropriation is commonly defined as the phenomenon that “takes place when members of a majority group adopt cultural elements of a minority group in an exploitative, disrespectful, or stereotypical way.”^[2] Appropriation of a non-dominant culture can manifest in many different ways: disrespectful Halloween costumes, use of Native American names or symbols in American sports, indigenous motifs incorporated into fashion designs, and countless other ways. Previously, this kind of ‘free for all’ attitude towards non-European cultures was common-place, and seen as a legitimate source of inspiration for such artists as Picasso and Renoir, who took themes and styles directly from African masks and Japanese print-making, respectively. However, contemporary audiences are seeking more respect towards minority cultures. The designs, motifs, and symbols associated with such cultures often have ancestral or spiritual significance, and using them for commercial profit marginalizes its origin culture.^[3]

Indigenous motifs, designs, and elements may often be admired for aesthetic reasons, but it remains morally impermissible for artists and designers to incorporate such elements into their art and designs without permission.^[4] Unfortunately, mere moral stipulations are frequently insufficient to keep contemporary artists (and designers) from using things that they believe are necessary to their artistic endeavors, such as the artists leading the Primitivist and Cubist movements.^[5] In more modern examples, the fashion designer Carolina Herrera appropriated designs of Mexican indigenous groups in her 2020 resort collection^[6] and in 2012 Fiji Airways adopted masi motifs from iTaukein (Fijian indigenous) culture as its new brand mark.^[7]

Standard Intellectual Property Protections

Typically, ideas are not protected under any copyright law, generally speaking, as there must be a tangible creation for protections to attach. Visual art (that is “original pictorial, graphic, and sculptural works, which include two-dimensional and three-dimensional works of fine, graphic, and applied art”^[8]) can be protected under the legal principles of copyright or trademark. However, this protection is often not available to traditional indigenous art, such as totems, motifs, and ancestral or spiritual figures (“indigenous works”^[9]) for two primary reasons.^[10] First, and perhaps most obviously, indigenous works were often created many generations before their ownership status was called into question.^[11]Thus much of their imagery is already past the copyright law protection period of 70 years from the death of the author. However, the protections afforded by intellectual property expire,^[12] and are also generally awarded based on a ‘first come, first serve’ basis. As a result, it is very difficult for standard intellectual property rights to adequately protect indigenous works.^[13]

The second reason that standard intellectual property is inadequate is that indigenous works are not typically considered works of individual creation.^[14] Indigenous works are often considered collective or community works, both by views from those outside the community and by members of the community, as there may be no singular artist responsible for their creation.^[15] For some works, identifying an individual author is not even possible. For instance, the significant part, and what therefore ought to be most protected, may not be one particular design or work of art: it may be rather a symbol, such as a totem,^[16] or a style of art, such as masi,^[17] which may be reworked continually by generations of artists within the community.

However, some indigenous works are copyrightable. For example, Sealaska Heritage v. Neiman Marcus,^[18] is considered to be the first time in the U.S. a business was sued for copying an indigenous pattern.^[19] In this case, Neiman Marcus, a luxury retailer, was found to have impermissibly appropriated a coat design from Tlingit artist and master weaver Clarissa Rizal in a coat marketed on its website as “Ravenstail Knitted Coat.” Sealaska Heritage Institute, as holder of the copyright, sued Neiman Marcus for illegal copying and also claimed a violation of the 1990 Indian Arts and Crafts Act.^[20] Although the parties settled, Neiman Marcus refused to admit fault or wrongdoing in the settlement, claiming that the “Ravenstail” term and design was in the public domain, despite Rizal’s registration of the design, and that it was “truthfully advertised.”^[21] Subsequently, no new legal standard was set for such intellectual property ownership disputes in the U.S., and indigenous works remain as much at risk for appropriation as ever.

Non-Standard Protections for Indigenous Works

Aside from minor acts regulating commercial activities, like the 1990 Indian Arts and Crafts act, which only requires truthful advertising, there are few national or international protections for indigenous peoples.^[22] The United Nations, as an advisory group, was previously one of the only sources for such protections. First and foremost has been the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which provides guidelines for protection of cultural heritage and indigenous works and redress for violations against the same in article 11:

1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.^[23]

However, while UNDRIP does provide a framework for new national and local laws regarding the rights of indigenous people, it is largely unenforceable.^[24] 144 states voted in favor of UNDRIP, with four opposing, and eleven abstaining. Unfortunately, the four countries that opposed its enactment, Australia, Canada, New Zealand, and the United States, all have some of the largest indigenous populations in the world,^[25] although all four have since endorsed it, even if they did not adopt the principles into binding law.

Prior to the passing of UNDRIP, some of the only generally available protections were UN human rights resolutions and laws for protection of cultural heritage, such as the 1965 Convention on the Elimination of All Forms of Racial Discrimination (Article 5.e.vi),^[26] the 1981 African Charter on Human and Peoples’ Rights (Article 17.2),^[27] and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR).^[28] There may still be some reliance on these acts today, as they are still in force. These human rights treaties protect cultural heritage and identity tangentially, as it is related to human welfare and wellbeing.^[29] There are also several other UN conventions and declarations regarding cultural heritage. While most deal with the protection of cultural heritage and property during armed conflict, the 2003 Convention for the Safeguarding of Cultural Heritage does make some provisions to protect indigenous works like designs, handicrafts, music, and dance.^[30]

Innovation in Protections Against Cultural Appropriation

Mexico, one of the “pluricultural” nations of the world, is home to 68 indigenous populations, each of which have their own unique traditions and needs for protection.^[31] The most recent progress in protecting indigenous works has been made in Mexico in the past year. Fifteen years after its ratification of UNDRIP, in 2022, Mexico actualized its endorsement of those principles and the Senate unanimously approved a national statutory ban on cultural appropriation.^[32]

The Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican People and Communities (“the ban”) covers such indigenous works as may not typically fall under copyright or trademark protection.^[33] In this law, cultural heritage is defined as:

the set of tangible and intangible goods that include languages, knowledge, objects and all the elements that constitute the cultures and territories of the indigenous and Afro-Mexican peoples and communities, which give them a sense of community with their own identity and that are perceived by others as characteristic, to which they have the full right of ownership, access, participation, practice and enjoyment in an active and creative way.^[34]

This is a significantly broad definition, which affords protection to many different kinds of indigenous works. However, it can also lend itself to vagueness and intense litigation to determine the exact reaches of the protection. Under the ban, third parties (i.e., non-indigenous creators) may only use indigenous and Afro-Mexican cultural elements with the “free, prior, and informed consent” of the community from which the element is derived.^[35] Under Article 31 of the ban, indigenous peoples and communities are also granted the right to revoke this consent at any time if there is “non-compliance.”^[36] Notably, the ban prohibits appropriation of elements or works even when creators claim that they simply “inspired” their own works, as long as there is a high degree of similarity.^[37] Furthermore, the various individual indigenous and Afro-Mexican communities will be allowed to determine which elements, items, etc. form a significant part of their cultural heritage and should be listed in the national registry to be protected.^[38]

To enforce the ban, the Mexican Senate provided for “the adoption of a set of measures of a legal, technical, administrative and financial nature, for the preservation and enrichment of the cultural heritage,” including a Registry of cultural items and elements, and an intersectional Commission comprised of members several other departments in the Mexican State.^[39] If any people or community identifies one of their works being appropriated or commercialized without their permission, the ban permits that individual or community remediation in three ways: alternative dispute resolution (“la mediación”), filing a civil lawsuit or administrative action (“la queja”), or pressing criminal charges (“la denuncia”).^[40] The ban allows the administrative agency to punish offenders who impermissibly appropriate indigenous works in five ways, in addition to heavy fines:

1. Withdrawal from circulation, sale, public exhibition or making available in electronic media, of the goods to which the complaint refers.
2. Prohibition of the sale of the goods in question.
3. Securing of assets.
4. Suspension of activities or closure of establishments.
5. Reparations for damages.^[41]

The ban further allows prison sentences of up to 10 years (or 20 years, if the misappropriation constitutes “cultural ethnocide”).^[42] However, the details are very limited in this law regarding what kind of proof is required to prove a sufficient nexus to prosecute non-Mexican actors.

The ban was purportedly enacted as a response to the widespread appropriation and plagiarism of traditional and indigenous Mexican and Afro-Mexican work, especially that of textiles by the fashion industry, such as designers Zara, Louis Vuitton, and Carolina Herrera.^[43] However, as previously stated, the definitions of cultural heritage, as well as the provisions outlining the ownership and remediation of theft are broad and sweeping. While this makes for an impressive show of strength on the part of the Mexican government, it will probably also lead to confusion and potentially high court traffic as the law is tested. José Dolores González, a Mexican IP attorney, specifically criticized the provisions for consent: “It says that the community must authorize, but who is the community? And that the people have to give authorization; who is the people? You get stuck here . . . Who are the people? Five people? Twenty people? The oldest person in town? One thousand people? The ejido commissioner?”^[44]

The ban granted the deciding power of what elements are “cultural heritage” to indigenous communities as a whole – while this may be “noble,” it is ultimately “too abstract” and leaves too many questions of specifics unanswered, such as who is actually authorized to grant licenses or bring suit, as José González pointed out.^[45] Furthermore, it remains uncertain how the money from levied fines will be distributed back to the communities once received by the Attorney General’s office.^[46] Other legal experts have also identified a problem with elements, icons, and other indigenous works that were already held to have fallen officially into the public domain but now could potentially be reclaimed by indigenous communities.^[47] Finally, there is concern that the law was crafted without really listening to the actual indigenous communities in Mexico, and that the ban on cultural appropriation is merely lip-service to their right to autonomy.^[48]

Conclusion

So far, there do not seem to be any lawsuits under way alleging violations of the Mexican ban, although more brands (such as Ralph Lauren informally and Shein) have been informally accused of cultural appropriation after the statute’s enactment.^[49] Ralph Lauren was informally accused by Beatriz Gutiérrez Müller, the wife of Mexican President Andrés Manuel López Obrador and writer/researcher in her own right, of plagiarism of Contla and Saltillo designs.^[50] The Mexican government officially “questioned” the use of Mayan elements in an item being sold on Shein’s website, which was then pulled from distribution.^[51] Both companies (headquartered in the United States) have since apologized, with no apparent repercussions levied against them by the Mexican government.^[52]

Given that we are still waiting on litigation to really test the strength of Mexico’s ban, it is difficult to determine how well it will hold up in international lawsuits. However, as can be seen in all of the examples mentioned in this article, there is rising public outcry against appropriation in commercial enterprises, especially fashion. Perhaps, then, the ‘bark’ of the new ban on cultural appropriation will prove to be an effective, albeit mild, measure to protect indigenous works despite its uncertain ‘bite’.

About the Author

Natalie Glitz Grumhaus is a law student at Michigan State University College of Law, graduating May 2023, and received her B.A. in Philosophy and Fine Art from Hillsdale College in 2020. Natalie was a Spring 2023 legal intern with the Center for Art Law.

References and Select Resources:

1. The first known usage of the term “cultural appropriation” was in a 1945 essay by Arthur Christy, which discussed the appropriation of “Oriental” culture by Europeans. See Arthur Christy, The Asian Legacy and American Life, in The Asian Legacy and American Life 55 (Arthur Christy, ed., 1945). ↑
2. Encyc. Britannica., What is Cultural Appropriation? (Oct. 19, 2021) https://www.britannica.com/story/what-is-cultural-appropriation. ↑
3. Id. ↑
4. See, e.g., Diane Wong, Modern Art and Cultural Theft, Art Business News (Apr. 29, 2021) https://artbusinessnews.com/2021/04/modern-art-and-cultural-theft. ↑
5. Id. ↑
6. Vanessa Friedman, Homage or Theft? Carolina Herrera Called Out by Mexican Minister, NY Times (June 13, 2019) https://www.nytimes.com/2019/06/13/fashion/carolina-herrera-mexico-appropriation.html. ↑
7. Brian Egan, Appropriation of the Month: Fiji Masi for Air Pacific or for Everyone?, Intellectual Property Issues in Cultural Heritage (Feb. 18, 2013) https://www.sfu.ca/ipinch/outputs/blog/appropriation-month-fiji-masi-air-pacific-or-everyone. ↑
8. U.S. Government Copyright Office, Visual Arts Works, https://www.copyright.gov/register/va-examples.html (last visited Mar. 10, 2023). ↑
9. For purposes of this article, “indigenous works” shall mean works collectively made or developed by a community and significant to that community as a whole, and shall not refer to individual creations made by indigenous artists. ↑
10. Another complication to protecting indigenous works is that of ‘fixation’, a copyright requirement in the United States, Canada, and some other countries, as many indigenous art forms, such as dance, music, and poetry, are often passed down orally. See Murphy Chen, Safeguarding Traditional Knowledge and Traditional Cultural Expression Through Intellectual Property Systems, Center for Art Law (Feb. 1, 2023) https://itsartlaw.org/2023/02/01/safeguarding-traditional-knowledge-and-traditional-cultural-expression-through-intellectual-property-systems. ↑
11. Hugh Stephens, Can Copyright Law Protect Indigenous Culture? If Not, What is the Answer?, Hugh Stephens Blog (Oct. 8, 2019) https://hughstephensblog.net/2019/10/08/can-copyright-law-protect-indigenous-culture-if-not-what-is-the-answer. ↑
12. One notable exception to this is the U.S. conception of trademark, which may be protected “in perpetuity” as long as it is renewed every ten years and “in use”. See GHB Intellect, When Does Intellectual Property Expire?, https://ghbintellect.com/when-does-intellectual-property-expire (last visited Feb. 23, 2023). ↑
13. See generally Neil Wilkhof, Copyrighting the Ogopogo Monster: The © story behind the news story, The IPKat (Nov. 1, 2022), https://ipkitten.blogspot.com/2022/11/copyrighting-ogopogo-monster-story.html (discussing the difficulty of registering a copyright for a cultural tradition, and how easily such traditions can be manipulated by majority/non-indigenous groups). ↑
14. Stephens supra n. 11. ↑
15. See Chidi Oguamanam, Rethinking Copyright for Indigenous Creative Works, Policy, Opinions, Politiques (June 28, 2017) https://policyoptions.irpp.org/magazines/june-2017/rethinking-copyright-indigenous-creative-works (discussing Canadian indigenous communities and the Canadian Copyright Act). ↑
16. Stephens supra n. 11. ↑
17. Egan supra n. 7. ↑
18. Sealaska Heritage Institute v. Neiman Marcus Group 1:20-cv-00002 (D. Alaska, Dec. 1, 2020). ↑
19. Elizabeth Jenkins, Neiman Marcus Is Getting Sued for Selling a ‘Ravenstail Knitted Coat’ for $2,500, KTOO (April 20, 2020), https://www.ktoo.org/2020/04/20/neiman-marcus-is-getting-sued-for-selling-a-ravenstail-knitted-coat-for-2500. ↑
20. Id. See also Indian Arts and Crafts Act (1990) 104 Stat. 4662. This act does not provide general protection to indigenous works, however, as it only proscribes the truthful marketing of Native American or Native Alaskan works and art regarding their history and origin. ↑
21. Sealaska Heritage, Sealaska Heritage, Rizal Family Settle Lawsuit Against Several Defendants (Mar. 3, 2021), https://www.sealaskaheritage.org/node/1367. See also, Jeremy Hsieh, Sealaska Heritage settles Ravenstail coat case with Neiman Marcus, other defendants, KTOO (Mar. 3, 2021), https://www.ktoo.org/2021/03/03/sealaska-heritage-settles-ravenstail-coat-case-with-neiman-marcus-other-defendants/#:~:text=Sealaska%20Heritage%20Institute%20and%20the%20heirs%20of%20the%20late%20weaver,as%20an%20Alaska%20Native%20craft. ↑
22. Another example of a well known, but very limited, U.S. act protecting cultural property is NAGPRA, which protects human remains and a very limited set of artifacts. See Native American Graves Protection and Repatriation Act (NAGPRA) (1990) 25 U.S.C. 3001. ↑
23. G.A. Res. 61/295, art. 11 (Sept. 13, 2007). ↑
24. U.N. Permanent Forum on Indigenous Issues, Frequently Asked Questions: Declaration on the Rights of Indigenous Peoples, ¶ 7 (found at https://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf). ↑
25. Stephens supra n. 11. ↑
26. Convention on the Elimination of All Forms of Racial Discrimination art. 5(e)(vi), Dec. 21, 1965, 660 U.N.T.S. 195. ↑
27. African Charter on Human and Peoples’ Rights art 17.2, June 27, 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). ↑
28. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3. ↑
29. See Marc-André Renold & Alessandro Chechi, International Human Rights Law and Cultural Heritage, J. Paul Getty Trust (July 13, 2022), https://www.getty.edu/publications/cultural-heritage-mass-atrocities/part-4/23-renoldchechi. ↑
30. Convention for the Safeguarding of Cultural Heritage art. 2, Oct. 17, 2003, 2368 U.N.T.S. 3. ↑
31. See International Work Group for Indigenous Affairs, Indigenous Peoples in Mexico, https://www.iwgia.org/en/mexico.html (last visited Mar. 10, 2023). ↑
32. Ley Federal de Protección del Patrimonio Cultural de los Pueblos y Comunidades Indígenas y

    Afromexicanas (Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican People and Communities (translated)), Diario Oficial de la Federación [DOF], Jan. 17, 2022 (Mex.). ↑

33. Id. ↑
34. Id. at art. 3(xii) (translated). ↑
35. Id. at art. 2(vi), 8 (translated). Nothing in these provisions provides guidance on how to obtain such consent, who is authorized to give consent, for how long the consent (or license) will be valid, or for what purposes. Once again, we find an example of how Mexico’s law is well-intentioned but not well-executed. ↑
36. Id. at art. 31 (translated). ↑
37. Id. at art. 74 (translated). ↑
38. Id. at art. 40 (translated). ↑
39. Id. at art. 3(xiii), 45-50 (translated). ↑
40. Id. at art. 57 (translated). ↑
41. Id. at art. 67, 70 (translated). ↑
42. Id. at art. 73-75. ↑
43. Chantal Flores, Mexico’s Cultural Appropriation Ban Is Off to a Messy Start, The Verge (Feb. 12, 2022), https://www.theverge.com/22924327/mexico-cultural-appropriation-law-indigenous-and-afro-mexican-communities See also Amy Guthrie, Mexico Fights Cultural Appropriation With New Intellectual Property Law, Law.Com (Dec. 6, 2021), https://www.law.com/international-edition/2021/12/06/mexico-fights-cultural-appropriation-with-new-intellectual-property-law/?slreturn=20230205215551. ↑
44. Flores, supra note 43. ↑
45. Kyle Jahner, Mexico Testing Limits of Using Law to Bar Cultural Appropriation, Bloomberg Law (Apr. 11, 2022), https://news.bloomberglaw.com/ip-law/mexico-testing-limits-of-using-law-to-bar-cultural-appropriation (quoting Kyoshi Tsuru). ↑
46. See generally LFPPCPCIA, supra note 32 at art. 67, 70. ↑
47. See Flores, supra note 43. ↑
48. See Flores, supra note 43. ↑
49. James FitzGerald, Ralph Lauren Apologizes After Mexico Indigenous ‘Plagiarism’ Claim, BBC (Oct. 21, 2022), https://www.bbc.com/news/world-latin-america-63342715. ↑
50. Isabel Woodford, Ralph Lauren Accused of Plagiarizing Indigenous Mexican Designs, Reuters (Oct. 20, 2022) https://www.reuters.com/business/retail-consumer/ralph-lauren-accused-plagiarizing-indigenous-mexican-designs-2022-10-20. ↑
51. Lizbeth Diaz, Mexico Concerned by Chinese Retailer Shein’s Use of a Mayan Design, Reuters (July 21, 2022) https://www.reuters.com/business/retail-consumer/mexico-concerned-by-chinese-retailer-sheins-use-mayan-design-2022-07-21. ↑
52. FitzGerald, supra note 49. ↑