Governments are taking cultural appropriation to court

Governments are taking cultural appropriation to court
Image: Reuters/Thomas Mukoya
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A few months ago, the Mexican government began to take a vocal stance against international designers using indigenous Mexican designs without crediting the artists.

In June, the government reached out to fashion house Carolina Herrera about its 2020 resort line, which uses traditional Mexican embroidery techniques. It asked the house to “publicly explain on what basis it decided to make use of these cultural elements, whose origins are documented, and how this benefits the (Mexican) communities,” reports NBC. The brand’s creative director, Wes Gordon, maintains that the collection is meant as a “tribute” to Mexico.

Less than a month later, Mexico’s government called out Louis Vuitton for its use of a traditional Mexican pattern in a chair design. The label has yet to respond. Both it and Herrera’s collections are still shoppable, but in a recent statement sent to Quartz, Louis Vuitton noted that it is “currently in a relationship with artisans of Tenango de Doria in the state of Hidalgo, Mexico, with the perspective of collaborating together to produce this collection.”

From music to art to clothing, governing bodies around the world are increasingly raising concerns about cultural appropriation in creative industries, protesting those who copy or outright lift elements of design from communities without acknowledgment or compensation.

But in calling out fashion, governments are up against an industry with a long history of this kind of borrowing. The practice is so ubiquitous, and the laws around it so blurry, it’s as yet unclear how successful any efforts to bring about change might be.

Appropriation in fashion is nothing new

Fashion designers, particularly in the West, have long used other cultures to inspire their designs, styles, prints, cuts, and aesthetics. In modern times, examples have included designers sending models to the runway in Geisha makeup and feathered headdress (Dior’s John Galliano), dreadlocks (Marc Jacobs), and Sikh turbans (Gucci’s Allesandro Michele). In 2017, Chanel found itself in hot water when it marketed a $2,000 Aboriginal-style boomerang as the ultimate luxury accessory.

But appropriation is often more complicated than sloppy parodies of other cultures on runways. In fashion, it evokes questions around “power, authenticity, respectfulness, and credit” wrote Connie Wang, who investigates fashion subcultures for Refinery29, in a recent New York Times op-ed:

“What do people get out of adopting aesthetics from other cultures? Through my travels, I’ve come to see appropriation as a form of communication: Sometimes what people are trying to say is trivial, hurtful and condescending—a bindi to proclaim that they’re ‘exotic’ for instance, or cornrows to say they’re ‘cool.’ But other times, what is being said is difficult and important.”

Then there’s the fact that the lines themselves are blurry when we discuss appropriation. Does it count if entire garments, accessories, and makeup looks are inspired by elements of designs from another culture?  How do we decide if they’re outright ripoffs, or homages to the original? What if it’s unclear what the original even is? Such was the case of the Jacquemus bomba hat, which was accused of ripping off a lesser-known Mexican label called olmos & flores. It took a brief lesson in fashion history to determine that outlandishly large straw hats have been ubiquitous across cultures since the dawn of the 20th century. Questions and cases like these make it difficult to address appropriation from a cultural perspective, never mind a legal one.

Governments are stepping in

To legally enforce cultural ownership is no easy thing. The Mexican government, for its part, said a law would be brought before the senate to “tackle the plagiarism that different indigenous peoples and communities have suffered.”

It’s unclear if the Mexican law will pass, or what consequences it might have. What’s more, assigning rights to cultural creations—whether they be names, garments, or designs—is challenging. One example of this is the case of the Maasai of Kenya and Tanzania, whose traditional prints, patterns, and fine beadworks have been treated as free-to-use (often without attribution) by hundreds of companies, including Louis Vuitton and Diane von Furstenberg.

With the support of nonprofit organizations and lawyers that specialize in IP, the Maasai have been fighting to trademark their designs, but the bar for copyright protection varies by jurisdiction and is extremely high, as well as amorphous. After working on the issue for more than a decade, they struck their first deal last year with a UK-based retail company called Koy Clothing to use one of their prints on their apparel.

Registering traditional works—or any design, for that matter—is also not so easy. In the US, old copyright laws make the bar for protecting a fashion design via a patent incredibly high. Manufacturing clothing “of identical shape, cut, and dimensions,” is not prohibited thanks to a 2017 Supreme Court ruling. What’s more, an original design would have to be dubbed worthy of adequate “creative expression” (pdf) to be eligible for protection.

Western corporations, meanwhile, are notoriously litigious and have a clearer path to obtaining trademarks for their brands. For instance, Burberry’s plaid can’t be copied (beauty conglomerate Coty recently paid $225 million to use it on beauty products), Adidas is famously litigious about its three-stripe logo, and there’s a series of notorious IP cases involving red-soled shoes that Christian Louboutin asserts infringes on its signature red-bottomed heels. These companies are quick to enforce their own trademarks and copyrights via enforcement action, often citing brand dilution in suits and settlements.

But governments have a financial incentive to step in. An example of a worst-case scenario is the collapse of the textile industry in the DR Congo. An influx of cheap, Chinese copycat fabric in uniquely African designs—combined with insecurity and instability in the region—devastated its textile industry and its economy at large.

For the most part, the establishment labels accused of appropriating cultural aesthetics and artifacts, even by governments, have faced little-to-no consequences, even as their transgressions are increasingly raised and amplified by social media, callout culture, and accounts like Diet Prada. The outrage brands face is generally short-lived, and rarely are the products removed from circulation.

But norms may be changing: Around the same time that Mexico spoke out against Carolina Herrera, the mayor of Kyoto, Japan wrote an open letter to Kim Kardashian-West regarding her new shapewear line, initially launched as “Kimono.” Kadokawa Daisaku said it was his “strong wish” that Kardashian-West rethink her use of the name. Following the letter—and ample internet backlash—she renamed the label Skim.

In spite of the roadblocks, actions by governments and nonprofits might pave the way for others to take a more aggressive stance against appropriation. If anything, it might force brands to think twice about acknowledging a culture’s designs, techniques, and artifacts, and compensating its artists, rather than selling a copycat item dressed up an homage.

Update: This article has been updated to reflect that Louis Vuitton is in a collaborative relationship with artisans of Tenango de Doria in the state of Hidalgo, Mexico.