Written by Guest Contributor Valerie Oyakhilome
In recent years, designers and fashion brands have faced public scrutiny for appropriating indigenous designs. Cultural appropriation is often defined as “the taking, by a member of a dominant culture, of a cultural element from a minority culture, without consent, attribution or compensation.”[] Cultural appropriation is detrimental to indigenous people as it is not only offensive, but economically disruptive[] and commercially exploitative. Though the term itself emerged over the past few decades, cultural appropriation has been studied and documented as a centuries-old byproduct of colonialism, that till this day remains a commonplace practice within the fashion industry.[]
Oftentimes, cases involving allegations of cultural appropriation allude to complex intellectual property (IP) issues that may not necessarily fit within any particular legal framework. This article aims to highlight and examine the current state of cultural appropriation in fashion within the context of the current international IP regulatory landscape. As it stands, the lack of uniformity in the international application and enforcement of legal protections over indigenous designs has left indigenous communities vulnerable to exploitation by fashion brands.
Urban Outfitters v. Navajo People
In 2011, American retailer Urban Outfitters (UA) found itself at the center of a legal dispute after launching a collection named after the Navajo tribe. UA had been using the term “Navajo” since 2001 for apparel and accessories. Then, in 2012, the Navajo tribe decided to take legal action against UA after the latter launched a “Navajo” themed clothing line that included a native headdress, “Navajo print flask,” and “Navajo hipster panty.”[]
UA is no stranger to controversy; it was previously accused of cultural appropriation for releasing Palestinian-styled Keffiyehs as woven scarves, an “Irish I Were Drunk” t-shirt (right before St. Patrick’s Day), and for selling various tchotchkes, clothing, and duvet covers that featured the Hindu god Ganesh.[]
In the case of Navajo Nation v. Urban Outfitters, Inc., No. 12cv0195 LH/LAM (D.N.M. Nov. 24, 2014), filed in U.S. District Court of the District of New Mexico, the Navajo Nation sought injunctive relief, and monetary damages against UA for federal and state trademark violations. The Navajo tribe had registered several trademarks in 1943 for the wordmark “Navajo” in connection with the sale of clothing, footwear, online retail sales, household products and textiles. In its complaint, the Navajo Nation also alleged that UA violated the Indian Arts and Crafts Act (1990), a federal law that bans the sale of arts and crafts erroneously suggesting Native American origins.[]
In its defense, UA argued “fair use” of the term “Navajo,” claiming that the term was generic and that the “Navajo” branded items UA had sold are more descriptive of origin, print and style rather than a trademark use.[] UA further argued that the “Fashion industry has adopted ‘Navajo’ to describe a style.” Without apparent concern as to optics, UA also sought a declaratory judgment that included the cancellation of the Navajo tribe’s federal trademark registration of the word mark “Navajo.”
Both sides eventually settled in 2016 for an undisclosed amount and announced that they had entered into an agreement whereby the parties would collaborate on a line of Native American jewelry.[]
Marant v. Mixe
In 2015, French label Isabel Marant received major backlash for copying the 600 year old traditional red and white embroidery designs of the indigenous Mixe community of Santa Maria Tlahuitoltepec, Mexico in her spring/summer 2015 “Étoile” collection. While an authentic huipil blouse would normally cost 300 pesos, Marant’s version retailed for $290, approximately 4,500 pesos.[] Marant received widespread criticism on social media and protests were held in front of her New York City store.
In a surprising turn of events, Marant was ultimately sued for copyright infringement in France by fellow French fashion brand Antik Batik over the very same design. In defending against Batik’s infringement claim, Marant’s argued that she did not copy Batik’s design because she was inspired by the Mixe culture. Ultimately, it was the French court that officially decided that neither fashion brands could claim ownership of the copyright since the huipil designs are a “cultural product” from the Mixe people.[]
In 2016, the Oaxaca congress issued a cultural heritage declaration that the Mixe community’s traditional designs and language are Intangible Cultural Heritage per UNESCO guidelines.[] Although the protection status is not legally binding, it recognizes that the designs are unique to, and originate in Mixe culture.
While symbolic gestures such as the declaration from the Oaxaca Congress serve to increase visibility and cultural understanding, they do not provide substantive legal protections and are oftentimes not enforceable within the current international IP regulatory framework. Over time, Indigenous peoples have been encouraged to reclaim their agency by taking legal steps towards regaining control over their cultural designs and symbols using their domestic IP system. However, many would argue that it is the gap in protection within these respective IP systems that has enabled cultural appropriation to run rampant in the fashion industry in the first place.
Without a unified and enforceable international IP legal enforcement system, the standards imposed in one court of law, may likely be overlooked in another. That being said, global institutions such as the World Intellectual Property Organisation (WIPO) have taken steps towards articulating cultural forms of expression in an attempt to unify widespread efforts towards recognizing the rights of indigenous peoples.
In 2000, the WIPO created an Intergovernmental Committee on Intellectual Property and Genetic Resources Traditional Knowledge and Folklore (IGC) that established “traditional cultural expressions” (TCEs) as including “music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.” The organization states in their working description that TCEs may be considered as “the forms in which traditional culture is expressed; form part of the identity and heritage of a traditional or indigenous community; are passed down from generation to generation.”[]
Even with the WIPO’s acknowledgement and articulation of TCEs, international IP systems, for the most part, generally excludes TCEs from protection under copyright, trademark, patent, and design laws by inadvertently considering TCEs as being part of public domain. For example, copyright law generally requires works to be original. Given that TCEs are oftentimes passed down from generations, this requirement inherently has the effect of excluding TCEs from protection under “originality” provisions.[] Thus, allowing major fashion corporations like Urban Outfitters to claim “fair use” when appropriating traditional designs.
The Current State of the International IP System
While countries such as Costa Rica, Kenya, Peru, New Zealand, and Zambia currently have legislation in place to protect certain traditional knowledge and TCEs,[] other countries such as the United States, have been slow to implement comprehensive IP protections within their legal framework. Catherine Saez (2018) states in her article published on the Intellectual Property Watch, that “the United States and the European Union countries are generally opposed to a binding instrument to protect TCEs.”[] In 2007, the United Nations General Assembly adopted a Declaration on the Rights of Indigenous Peoples (UNDRIP) with a majority of 144 states voting in favor of the declaration, 4 states (including the United States, Australia, New Zealand, and Canada) voting against it, and 11 states abstaining.[] Article 31 of the Declaration specifically states:
1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestation of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.[]
Even though the declaration explicitly calls for international protections for TCEs, the rights delineated in UNDRIP remain non-binding and largely unenforceable. While there have been discussions since 2010 about establishing a legal instrument that enforces universal protections for TCEs, it would appear that we are still years away from a general consensus.
In 2017, the US, EU, China, and several countries continued negotiations with the IGC, on a draft text of the international legal instrument that safeguards TCEs, after postponing discussions on the subject for three years. At the end of the 37th session held the following year in August 2018, committee facilitators issued second revisions to draft of the articles on TCEs. The next year, discussions continued during the 38th session held in December 2018, where IGC delegates from a number of regional groups expressed their continued concern regarding the lack of sufficient universal protections for TCEs, and specifically noted that the absence of binding rules has directly contributed to ongoing illegal appropriation.[] Many of the delegates urged facilitators to advance the current draft of the articles so that a decision can be reached on the international framework for enforcing the protection of IP rights for Indigenous communities. In the most recent session held in June 2019, the committee did not come to a consensus regarding finalized draft of the articles, but has planned to continue negotiations on TCEs into October 2021, when the WIPO General Assembly will take note of the progress made on the text, consider the options for the legal instrument, and “make the necessary decision(s).”[]
While We Wait
In the meantime, indigenous communities should continue to raise awareness and adopt as much legal protection as is legislatively feasible in their domestic IP systems. At the same time, fashion brands drawing on inspiration from cultural designs should move to appropriately attribute and compensate indigenous communities. Otherwise they risk contributing to the erasure of historical context and the meaning of cultural constructs that have been previously defined for centuries. In doing so they disparage their reputation and, in many cases, encounter a lawsuit.
Culture is currency and while the mainstay of the fashion industry allows for uninhibited creativity and the transference of creative works into trendy derivatives, due compensation should be given to indigenous people. It is their cultural identity, after all, that falls victim to this predatory aspect of consumerism
Gertner, R. K. (2019). The impact of cultural appropriation on destination image, tourism, and hospitality. Wiley Periodicals, Inc., pp. 1-5. doi:https://doi.org/10.1002/tie.22068
Hendriksz, V. (2015). Indigenous tribe accuses Isabel Marant of plagiarism. From Fashion United: https://fashionunited.uk/news/fashion/indigenous-tribe-accuses-isabel-marant-of-plagiarism/2015062216817
Oxford Reference. (2019). Overview Cultural Appropriation. From Oxford Reference: https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095652789
Saez, C. (2017). WIPO Committee On Protection Of Folklore: Shall We Dance? Intellectual Property Watch. From https://www.ip-watch.org/2017/02/24/wipo-committee-protection-folklore-shall-dance/
Saez, C. (2018). Traditional Knowledge, Folklore: How To Protect Them From Misappropriation – This Week At WIPO. Intellectual Property Watch. From https://www.ip-watch.org/2018/12/10/traditional-knowledge-folklore-protect-misappropriation-week-wipo/
Shand, P. (2002). Scenes from the Colonial Catwalk: Cultural Appropriation, Intellectual Property Rights, and Fashion. The University of California Cultural Analysis(3), 47-88. From https://www.ocf.berkeley.edu/~culturalanalysis/volume3/pdf/shand.pdf
Soto, J. (2019). Hands Off My Heritage: Cultural Appropriation And Trademarks. Trademark Now. From https://www.trademarknow.com/blog/hands-off-my-heritage-cultural-appropriation-and-trademarks
The Fashion Law. (2015). Decision in Isabel Marant, Antik Batik Battle over Mexican Design Expected This Week . From The Fashion Law: http://www.thefashionlaw.com/home/decision-in-isabel-marant-antik-batik-battle-over-mexican-design-expected-this-week
UNESCO-ICH. (2019). What is Intangible Cultural Heritage? From United Nations Educational, Scientific, and Cultural Organization (UNESCO) Intangible Cultural Heritage (ICH): https://ich.unesco.org/en/what-is-intangible-heritage-00003
United Nations. (2007). United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 1-30. From https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf
Varagur, K. (2016). Mexico Prevents Indigenous Designs From Being Culturally Appropriated — Again. doi:https://www.huffpost.com/entry/mexico-prevents-indigenous-designs-from-being-culturally-appropriated-again_n_56e87879e4b0b25c9183afc4?guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAIJDle7tg6OivbAvIJraOuBYn8jdE7pbitENXM4WEmIUIhWG3IRJm
Vézina, B. (2019, April). Curbing Cultural Appropriation in the Fashion Industry. Center for International Governance Innovation (CIGI), 24. From https://www.cigionline.org/sites/default/files/documents/paper%20no.213.pdf
Werft, M. (2016). Urban Outfitters in Court Over Using Navajo Culture for Profit . From Global Citizen: https://www.globalcitizen.org/en/content/urban-outfitters-cultural-appropriation-navajo-law/
Woolf, N. (2016). Urban Outfitters settles with Navajo Nation after illegally using tribe's name. From The Guardian: https://www.theguardian.com/us-news/2016/nov/18/urban-outfitters-navajo-nation-settlement
World Intellectual Property Organization (WIPO). (2015). The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Background Brief. WIPO. From https://www.wipo.int/edocs/pubdocs/en/wipo_pub_tk_2.pdf
World Intellectual Property Organization (WIPO). (2018). Glossary of Key Terms Related to Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions. WIPO/GRTKF/IC/37/INF/7, 40-41. From https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=410022
World Intellectual Property Organization (WIPO). (2019). DECISIONS OF THE FORTIETH SESSION OF THE COMMITTEE. Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. From https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_40/wipo_grtkf_ic_40_decisions.pdf
[] Vézina, B. (2019, April). Curbing Cultural Appropriation in the Fashion Industry. Center for International Governance Innovation (CIGI), 1-24.
[] See Gertner, R. K. (2019). The impact of cultural appropriation on destination image, tourism, and hospitality. Wiley Periodicals, Inc., pp. 1-5.
[] Oxford Reference. (2019). Overview Cultural Appropriation. From Oxford Reference
[] Werft, M. (2016). Urban Outfitters in Court Over Using Navajo Culture for Profit; see also Woolf, N. (2016). Urban Outfitters settles with Navajo Nation after illegally using tribe's name.
[]Werft, M. (2016)
[] The Indian Arts and Crafts Act of 1990 (PL 101-644).
[] Werft, M. (2016). Urban Outfitters in Court Over Using Navajo Culture for Profit .
[] Vézina, B. (2019, April). Curbing Cultural Appropriation in the Fashion Industry.
[] Vézina, B. (2019, April).
[] Vézina, B. (2019, April).
[] See also UNESCO definition of Intangible Cultural Heritage https://ich.unesco.org/en/what-is-intangible-heritage-00003
[] World Intellectual Property Organization (WIPO). (2015). The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Background Brief
[] Vézina, B. (2019, April). Curbing Cultural Appropriation in the Fashion Industry.
[] Soto, J. (2019). Hands Off My Heritage: Cultural Appropriation And Trademarks. Trademark Now.
[] Saez, C. (2017). WIPO Committee On Protection Of Folklore: Shall We Dance? Intellectual Property Watch.
[] Saez, C. (2018). Traditional Knowledge, Folklore: How To Protect Them From Misappropriation – This Week At WIPO. Intellectual Property Watch.
[] United Nations. (2007). United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 22-23
[] Saez, C. (2018).
[] World Intellectual Property Organization (WIPO). (2019). DECISIONS OF THE FORTIETH SESSION OF THE COMMITTEE. Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.