Cultural appropriation and intellectual property in the world of fashion
Mexico continues its fight against cultural appropriation, by giants in the luxury goods and fashion sector, of certain graphic designs that belong to indigenous peoples. The Zara, Anthropologie and Patowl brands are the new targets of the Mexican government. This concept of cultural appropriation is not well-defined and the peoples injured thereby are not well-protected by international intellectual property law. Hence, the World Intellectual Property Organization (WIPO) tries to establish a regulation for the prevention of cultural appropriation.
What does cultural appropriation mean?
Cultural appropriation is defined as an act by which an individual born into a relatively dominant culture takes possession of a traditional cultural expression in order to adapt it to another culture in a different context; and does so without any authorization or indication of the source, or any remuneration, in a way that is detrimental to the holders of the traditional cultural expression in question.
The ZARA, Antropologie and Patowl brands’ dispute with the Mexican government
At the end of May 2021, the Mexican Secretariat of Culture asked the aforesaid brands to explain in a public document the basis for their privatization of communauty property belonging to various indigenous peoples, and how they will be compensated.
In November of 2020, the Mexican Ministry of Culture filed complaints against the French designer Isabel Marrant, compelling her to cease and desist from the sale of clothes decorated with traditional designs of indigenous Mexican peoples.
Mexican leaders want to change their copyright law, which already protects traditional know-how, in order to punish the plagiarism imposed on various indigenous peoples. However, such a law would take effect only in Mexico; and, being only national in scope, would not be enforceable in other countries. Hence, since 2019, the WIPO has tried to establish a regulation imposing sanctions on cultural appropriation, which is a real scourge for the peoples involved.
We know that the luxury goods and fashion sector is very fond of cultural appropriation – a phenomenon that has been highly criticized by the countries involved. For example, in 2017, the CHANEL brand was accused of cultural appropriation for having manufactured and marketed a boomerang engraved with art from Australia’s Aboriginal cultures, which it sold for € 2 000.
It is easy to understand the general criticism of these brands for the lack of any compensation for the peoples who originated the creations, while selling their products at exorbitant prices.
No applicable regulation presently exists
At present, international intellectual property law precludes protection of traditional cultural expressions, as they are deemed to be in the public domain. It assumes them to be of a type of property that belongs to, and is available to, everybody; and, therefore, no proprietary right can be claimed in that regard.
Article 31 of the United Nations Declaration regarding the rights of indigenous peoples provides a basis for adapting international law in a way that would give them the right to exercise their rights in their traditional cultural expressions. The WIPO’s intergovernmental committee has negotiated an international legal instrument for protecting traditional cultural expressions through an intellectual property law.
Design and model law does not seem to be appropriate since it protects the aesthetic or ornamental aspect of a product – i.e. its appearance, not the way in which it functions. Therefore, traditional designs & models are sometimes inspired by traditional cultural expressions, and merely copy a traditional cultural expression such as a pattern; hence, they do not meet the criterion of novelty or originality and any third party may oppose their registration. Here, the patterns of wronged indigenous peoples are in the public domain, and are not protected worldwide at the time of their creation by an intellectual property right; therefore, a protection under design and model law is quite unlikely.
On the contrary, the recognition of a copyright for these traditional cultural expressions would be a much better choice for protection, and that is precisely what the WIPO envisages. Indeed, a copyright consists of a proprietary right and a nonpecuniary right, which authorizes any author to prohibit natural persons or legal entities from copying and presenting their works to the public without their authorization. Hence, with such a copyright, the indigenous peoples — insofar as their creations are originals — would have the right to prevent any third parties from using them without their consent, which would restore power to the indigenous peoples over their creations, and would enable them to battle on equal terms with the giants of the fashion industry.
Even though cultural appropriation is not presently punished under intellectual property law, and it is still possible to derive renderings from designs of certain peoples, such a practice, as well as forgery, might very well be subject to sanctions in a few years.
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 WIPO Magazine : « Intellectual Property at the service of the fight against cultural appropriation in the fashion industry»