Who Owns Culture? There’s a Legal Side to the Issue of Cultural Appropriation

Sindhu Sundar
·8 min read

Who determines who has the right to use a name or a design?

It’s a fundamental question that underlies discussions around cultural appropriation — whether it was the Mexican culture minister targeting the Carolina Herrera brand’s alleged use of Mexican indigenous groups’ design styles, or the Navajo Nation tangling with Urban Outfitters in civil litigation.

“In its most basic definition, cultural appropriation is stealing something from a culture that is not one’s own,” said Neal Lester, professor of English and founding director of Project Humanities at Arizona State University, who specializes in African American literature and cultural studies.

“Especially without showing that they understand the culture, respect the culture or the culture is somehow benefiting from it,” he said. “It is not the same as cultural exchange, which is about acknowledging mutual respect, without having to borrow or steal or perform someone else’s culture.”

As a commercial practice, cultural appropriation takes from a range of traditional products and art including artifacts, cuisines, music, traditional medicine and folklore. And it draws criticism when there is an arguable power difference at play, and when members of the culture whose work is being appropriated are excluded from the creation, production and economic benefits of the products being sold, experts said.

In Western fashion, controversial episodes often involve designers from a majority or dominant culture looking to indigenous or other types of cultural sub-groups. Such groups’ specific styles or designs may be part of their clothing or other adornment, and bear unique cultural significance, said Susan Scafidi, director of Fordham Law School’s Fashion Law Institute, who wrote the 2005 book “Who Owns Culture?: Appropriation and Authenticity in American Law.”

“So we’re looking at designers who are attracted to the aesthetic of a particular culture, and borrow elements of that culture, sometimes divorced from the real meaning of those elements in that culture,” she said. “And that’s where tensions arise.”

Although some observers frame the discussion within a polarized “culture wars” discourse, where harm is often downplayed as a subjective causing of “offense” to certain groups, there actually are formal mechanisms that can apply in certain contexts to address the power dynamics, intellectual property infringement and economic harm that can be caused by instances of appropriation.

For one, there are laws that offer recourse in some instances. In the U.S., the Indian Arts and Crafts Act of 1990, last amended about a decade ago and meant to protect the work of Native American nations, applies to the names of federally recognized tribes and certain generic terms like “Native American.” The IACA can help to regulate the use of such terms in products that may fall in the category of handicraft, such as handbags and other accessories that could be made in a traditional indigenous style.

Both the Department of Justice, and civil plaintiffs can use the IACA. It was one of the laws that the Navajo Nation, a federally recognized Native American tribe, invoked in litigation against Urban Outfitters some years ago. The Navajo Nation’s suit, first filed in New Mexico federal court in 2012 and settled in 2016, took aim at certain apparel and accessories including socks, tote bags and earrings that Urban Outfitters had carried with the Navajo name. In its suit, the Navajo Nation also drew on its dozens of trademarks for the use of the name “Navajo” that it had registered with the U.S. Patent and Trademark Office.

In responses filed in the case, Urban Outfitters had argued that the term “Navajo” had become too generic to be protected by trademarks, and that the retailer’s use of those terms was “in good faith.” A judge in the case later found that the defendants had not shown enough evidence that consumers viewed the name “Navajo” as generic.

The case settled eventually, and included a licensing agreement between Urban Outfitters and the Navajo Nation. Representatives for Urban Outfitters did not respond to requests for comment.

The suit illustrates how Native American tribes can use the law to seek recourse for the unlicensed commercial use of culturally significant and proprietary terms and designs. But it also demonstrates a path for brands to use such material in a way that acknowledges its source.

In fact, to that end, the Navajo Nation created an intellectual property department in 2019 under its Division of Economic Development to serve as a centralized department in order to both help enforce trademarks and facilitate the licensing of its intellectual property.

“Through this department, the Nation hopes to provide a clear point of contract for individuals who are interested in entering into licensing agreements with the Nation,” said Katherine Belzowski, Acting Assistant Attorney General, Economic/Community Development Unit from the Navajo Nation Department of Justice.

“When the Navajo government brings these cases, we’re not just bringing it to protect our own governmental interest, but we’re doing it to protect the interests of the Navajo people,” Belzowski said. “It goes to a more Navajo way of thinking as well — that we do it to benefit the welfare of Navajo people.”

In a court filing in 2013, the Navajo Nation wrote that it has more than 300,000 enrolled members and that its protection and promotion of its trademarks has brought in more than $500 million in sales of products with Navajo branding.

Some international agreements also nod toward preserving the identity of traditional cultural products.

The United Nations’ Convention for the Safeguarding of the Intangible Cultural Heritage, which went into effect in 2006, is meant to protect features of traditional heritage including craftsmanship and rituals, according to the U.N.

The agreement asks its members to take “legal, technical, administrative and financial” steps to ensure “access to the intangible cultural heritage while respecting customary practices governing access to specific aspects of such heritage.” But the document is general, and simply requests its signatories to make national provisions to protect traditional cultural expression.

Still, such accords can establish a tone around how traditional cultural products, particularly those of often marginalized artists, should be treated. It helps establish both formal and informal standards around what is considered acceptable practice, Scafidi said.

“When I think of law, and when we all think of law, we think of ‘Black Letter’ law,” she said. “We think of legislation, we think of judicial opinions, we think of government regulations. But in fact, that’s just one level of the law.

“I like to think of law as consisting not only of Black Letter laws, but also of organizational rules — dress codes, for example, and social norms,” Scafidi said. “At this point in our legal evolution, cultural appropriation is largely regulated by social norms, which are of course very fluid and very evolving, as is culture itself.”

But even civil rights agencies could intervene in some cases, or at least make their scrutiny felt. The New York City Commission on Human Rights, a city agency that targets discrimination in the workplace and other contexts, has sent some signals that it is paying attention to how fashion companies promote and design products.

The agency’s high-profile settlement with Prada in February, for instance — though it related to the use of alleged blackface imagery, and was not about cultural appropriation — could nevertheless have broader resonance for fashion companies, said Carmelyn Malalis, chair and commissioner of the NYC Commission on Human Rights. The resolution followed a complaint by Chinyere Ezie, a civil rights lawyer, over the use of certain figurines in stores and window displays that Ezie said evoke blackface, according to her social media posts in December 2018.

“Our resolution with Prada, I think, it’s come at an extremely timely space, where it provides in some ways a roadmap for many designers and other industries to think about how they go about looking internally,” said Malalis. “How do they go about making changes internally in order to make sure that their policies, practices and representations aren’t reifying historic cultural inequities.”

Prada, which said at the time that it “abhors racist imagery” and pulled the displays from stores, pointed to the Diversity and Inclusion Advisory Council it created in February 2019. The council, established with artist Theaster Gates and director Ava DuVernay, also includes Sarah Lewis, Harvard University associate professor of African and African-American Studies, Fashion Institute of Technology president Joyce Brown and Mariarosa Cutillo, chief of strategic partnerships at the U.N. Population Fund, according to Prada.

“The Prada Group has already commenced and is committed to providing comprehensive diversity and inclusion training to its employees and is partnering with universities, organizations and the United Nations to implement scholarship and internship programs that provide opportunities for under-represented groups in the fashion industry,” a Prada representative said.

Malalis said even though the Prada case wasn’t about cultural appropriation, she hoped fashion companies would view the settlement as a framework for how they can also use it to address instances of cultural appropriation early in the production stage.

“I think what it says to these different companies is, ‘We need more people like that in the room who would be able, because of their knowledge and experience, to say maybe there’s an issue here,’” she said. “The real question is not, ‘Can I do this? Can I show this product, can I come out into the world with this product?’ The question really becomes, ‘Should I?’”

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