CIGI Papers No. 213 April 2019 Curbing Cultural ...

[Pages:24]CIGI Papers No. 213 -- April 2019

Curbing Cultural Appropriation in the Fashion Industry

Brigitte Vezina

CIGI Papers No. 213 -- April 2019

Curbing Cultural Appropriation in the Fashion Industry

Brigitte Vezina

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Table of Contents

vi

About the Author

vi

About the ILRP

1

Executive Summary

1

Introduction

2

Setting the Scene: Cases of Cultural Appropriation in Fashion

5

What Is Cultural Appropriation?

7

Cultural Appropriation: Origins and Consequences

10

Principles for Using TCEs in an Appropriate Fashion

12

Policy, Legal and Practical Solutions to Curb Cultural Appropriation

15

Conclusion: Looking beyond Fashion

16

About CIGI

16

? propos du CIGI

About the Author

About the ILRP

Brigitte Vezina is a fellow with CIGI's International Law Research Program. At CIGI, she analyzes the key challenges in the ongoing efforts to develop an international system of protection for traditional cultural expressions (TCEs). Her research aims to present ways of protecting TCEs on both the domestic and international levels. She is currently an international law consultant at Brigitte V?zina ? Law & Culture, where she advises clients on legal and policy issues related to copyright and cultural heritage. From 2006 to 2016, Brigitte worked at the World Intellectual Property Organization in Geneva, Switzerland, as a legal officer in the Traditional Knowledge Division, dealing with intellectual property issues related to TCEs. Brigitte also worked in the Cultural Enterprise and Copyright Section at the United Nations Educational, Scientific and Cultural Organization in Paris, France, and with the Montreal-based intellectual property law firm, Robic. Brigitte holds an LL.B. from the University of Montreal (2002) and an LL.M. from Georgetown University (2005, with distinction). She has been a member of the Quebec Bar since 2003.

The International Law Research Program (ILRP) at CIGI is an integrated multidisciplinary research program that provides leading academics, government and private sector legal experts, as well as students from Canada and abroad, with the opportunity to contribute to advancements in international law.

The ILRP strives to be the world's leading international law research program, with recognized impact on how international law is brought to bear on significant global issues. The program's mission is to connect knowledge, policy and practice to build the international law framework -- the globalized rule of law -- to support international governance of the future. Its founding belief is that better international governance, including a strengthened international law framework, can improve the lives of people everywhere, increase prosperity, ensure global sustainability, address inequality, safeguard human rights and promote a more secure world.

The ILRP focuses on the areas of international law that are most important to global innovation, prosperity and sustainability: international economic law, international intellectual property law and international environmental law. In its research, the ILRP is attentive to the emerging interactions among international and transnational law, Indigenous law and constitutional law.

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CIGI Papers No. 213 -- April 2019 ? Brigitte Vezina

Executive Summary

number of recommendations may guide fashion designers into adopting respectful behaviour in relation to the use of TCEs in their creations.

The fashion industry has faced several accusations of cultural appropriation over the past decade. For example, American clothing retailer Urban Outfitters made headlines in 2011 when it issued Navajo-themed items, including underwear with traditional patterns, much to the discontent of the Navajo Nation. Likewise, French designer Isabel Marant was criticized in 2015 for designing a dress similar to a traditional blouse that has been made for centuries by the Mixe people, an Indigenous community in Mexico. Cultural appropriation may be summarily described 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 cases spark passionate debate because while fashion's borrowing of stylistic elements from other cultures is common practice, it can, in reality, be offensive to the holders of traditional cultures. Misinterpretation or disregard for the cultural significance of a traditional cultural expression (TCE), even if unintentional, can have drastic consequences, both culturally and economically. Calls for action to curb appropriation emphasize a need for Indigenous peoples to have better control over their TCEs, including through the intellectual property (IP) system and in line with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).1

Cultural appropriation may be explained, in part, by the jarring relationship between TCEs and IP, in particular copyright. While TCEs, such as traditional designs or motifs, are a product of the human mind, extant copyright law fails to provide adequate protection to TCEs, casting most of them into the public domain and thus making them vulnerable to appropriation. For instance, protection remains unavailable for TCEs that have been passed down the generations and thus fail to meet the originality criterion.

Drawing from actual cases of cultural appropriation in the fashion industry and relying on IP laws and principles, in particular moral rights, a

Centrally, several concrete policy, legal and practical solutions can be developed at the international level to put an end to cultural appropriation: the IP system can be adapted to offer adequate protection for TCEs; awareness can be raised among fashion designers and consumers alike so as to deter cultural appropriation; and initiatives can be carried out to strategically support Indigenous fashion designers.

Cultural appropriation is not confined to the world of fashion but manifests itself in other sectors, such as film, music and art. Furthermore, from an Indigenous, holistic viewpoint, TCEs are intrinsically linked to traditional knowledge, and developments in the protection of TCEs can positively impact the protection of traditional knowledge.

Introduction

Over the last two decades, the fashion industry -- ranging from luxury designers to mainstream retailers -- has developed a noticeable appetite for all things traditional, ethnic, folkloric or Indigenous. Flipping through the pages of fashion magazines or navigating the fashion blogosphere, one cannot avoid noticing the craze.

Many of the fashion designers partaking in this trend source their inspiration from the diverse cultures of Indigenous peoples from around the world and incorporate stylistic elements, such as patterns, motifs or design features, into their creations. These elements often fall under the concept of TCEs developed by the World Intellectual Property Organization (WIPO). Unfortunately, fashion designers sometimes use TCEs from foreign cultures in ways that disregard the cultural significance for their holders2 and cause them

1 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295, 46 ILM 1013 (2007).

2 The term "holder" is used in this paper to overcome a lack of agreed terminology on the legal status of the communities that create, hold, develop and transmit TCEs down the generations. In some contexts, holders could more appropriately be referred to as "guardians," "stewards" or "owners."

Curbing Cultural Appropriation in the Fashion Industry

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profound cultural, social and economic harm. This phenomenon translates as cultural appropriation.

Cultural appropriation in the realm of fashion sparks passionate debate owing to the complex legal issues at stake. On the one side, the way the fashion industry operates is such that designers freely integrate elements from other cultures into their own creations. Some designers even reject the concept of cultural appropriation and refer instead to "cultural appreciation," claiming that drawing inspiration is an homage to difference and diversity.3 In that sense, a diversity of cultural influences is one of the engines behind a dynamic fashion industry; it is what makes fashion evolve, thrive and constantly reinvent itself.

its harmful consequences. Drawing from actual cases and applying IP laws and principles, the paper offers a number of recommendations to guide fashion designers into adopting respectful behaviour in relation to the use of TCEs in their creations. Centrally, the paper outlines some proposals for concrete policy, legal and practical solutions to put an end to cultural appropriation. It concludes by drawing bridges between cultural appropriation in the world of fashion and the use of TCEs in other cultural industries, such as music, film and art, as well as misappropriation of traditional knowledge and genetic resources.

On the other side, calls for action to curb cultural appropriation emphasize a need for communities to have control over their TCEs to prevent unauthorized uses. These claims are set against the backdrop of an international recognition of the human rights of Indigenous peoples in UNDRIP4 and of attempts to ascertain IP rights in TCEs within the WIPO Intergovernmental Committee (IGC).5

As contrasted as they may appear at first blush, these opposing views are not entirely irreconcilable, and the challenges of addressing cultural appropriation are not insurmountable. This paper offers a brief introductory analysis to the questions that connect international IP law, the global fashion industry and TCEs, and is structured according to the following outline: first, this paper describes two selected cases of uses of TCEs in the fashion industry that have been tagged as cultural appropriation. It then presents the jarring relationship between IP and TCEs. Next, it attempts to establish clarity on the characteristics of cultural appropriation. The paper then tries to understand what might explain the prevalence of cultural appropriation and highlights

3 Minh-Ha T Pham, "Fashion's Cultural-Appropriation Debate: Pointless", The Atlantic (15 May 2014) [Pham, "Fashion's Cultural-Appropriation Debate], online: .

4 UNDRIP, supra note 1.

5 For an overview of the state of negotiations in the IGC on TCEs in 2018, see Brigitte V?zina, "Traditional Cultural Expressions: Laying Blocks for an International Agreement" CIGI, CIGI Papers No 169, 12 April 2018, online: . For more information on the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore, visit WIPO, "Intergovernmental Committee", online: .

Setting the Scene: Cases of Cultural Appropriation in Fashion

Isabel Marant and the Mixe Huipil

In 2015, French fashion designer Isabel Marant marketed a dress bearing remarkable resemblance to the traditional costume of the Mixe people, an Indigenous people from Santa Mar?a Tlahuitoltepec, Oaxaca, in southwestern Mexico. The dress, part of her Spring/Summer 2015 ?toile line, incorporated embroidery elements strikingly similar to those applied on the Mixe's traditional blouse, known as a huipil, whose origins date back 600 years.6

While an authentic huipil might cost around 300 Mexican pesos in Tlahuitoltepec, the Marant dress retailed for US$365, the equivalent of 4,500 pesos. Marant had neither asked the Mixe for permission to copy the huipil, nor had she acknowledged the traditional blouse as the origin for her dress's design, pointing instead to the dress's "bohemian appeal."7

6 Naomi Larsson, "Inspiration or plagiarism? Mexicans seek reparations for French designer's look-alike blouse", The Guardian, (17 June 2015), online: .

7 Theresa Avila, "Indigenous Women are Fighting Back after a Famous Fashion Designer Stole their Culture", Mic (19 June 2015), online: .

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CIGI Papers No. 213 -- April 2019 ? Brigitte Vezina

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