By: Nayomi Mendez Andrade 

Fashion designers are creators of apparel, footwear, and accessories. Historically, designers have used style cues, designs, and patterns from cultures that are not their own to create their work. This use has often been masked and justified by being labeled as inspiration. However, designers are “more than simply drawing inspiration; designers . . . have long mined from minority groups, adopting their underrepresented craftwork or techniques before passing them off as their own.” Minority and Indigenous communities remain vulnerable to the exploitation of their cultural designs without the proper acknowledgment or compensation because there are limited legal protections for them. 

What is Cultural Appropriation?

Patti T. Lenard and Peter Balint define cultural appropriation as a dominant group taking a valuable element from another culture for personal use, without consent and with a reasonable expectation that such taking will be objectionable. Sally E. Mary specifies that a valuable element of another culture includes “artistic, musical, and knowledge productions.”

The Legal Implications of Cultural Appropriation

Intellectual Property (IP) law is a common legal framework utilized to challenge cultural appropriation within the fashion industry. IP encompasses creations of the mind, which include symbols, names and images in commerce, literary and artistic works, and designs. These creations and inventions are legally protected by Trademarks, Copyrights, and Patents. IP protections offer individuals the opportunity to be recognized for their work or financially benefit from their inventions or creations. 

IP laws fail to protect against cultural appropriation because they typically “exclude traditional cultural expressions from protection.” A prevalent reason why IP law fails to protect against cultural appropriation is because IP laws only accord “exclusive rights to the creators or inventors” of a work. The issue is that the argument against cultural appropriation focuses on the ownership rights of an entire group who may not have directly contributed to the creation of the work. Since no specific creator can be identified, these cultural expressions do not fall within IP protections. 

For most, obtaining copyright protections is not difficult. However, it is nearly impossible for cultural groups to obtain copyright protections for their expressions. To obtain a copyright, there must be (1) a work of authorship, (2) originality, (3) and the work “must be fixed in a tangible medium of expression.” Originality requires that the work be original. Thus, if the work is a copy of an earlier work, then it is not eligible for copyright protection because it is not original. Since cultural works are generally passed down through generations and replicated, they rarely meet the originality requirement. 

Patent law specifically fails to protect groups from cultural appropriation because an invention must be novel to qualify for a patent. To qualify as novel, an invention must not have been known or used by others in the US, nor should it have been patented or described in a publication either in the US or internationally. Cultural designs, however, are often passed down from generation to generation. This makes it difficult for cultural works to meet the novelty requirement for patentability.

While trademark law provides protections for certain symbols or designs, it also falls short of protecting against cultural appropriation. For a symbol or design to qualify as a trademark, it must be used in commerce at the time of application, or the applicant must make a good-faith showing that it will be used in the stream of commerce at a future point in time. The issue here is that cultural designs and symbols are not created with the intent to be used for commerce, but to express spiritual or cultural significance.

A Global Attempt to Mitigate the Issue 

Some Countries have created heritage laws to protect cultural symbols and to mitigate cultural appropriation in the fashion industry. Mexico has been proactive in addressing cultural appropriation in the fashion industry, specifically with regard to the misuse of Indigenous designs. 

In 2021, Mexico’s Minister of Culture, Alejandra Frausto rightfully accused international fashion brands such as Zara, Patowl, and Anthropologie of cultural appropriation. Ms. Frausto claimed that these three brands had benefited from using indigenous patterns in their designs without compensating the communities. Ms. Frausto went on to demand an explanation from the three companies for using the Indigenous designs, claiming that the cultural elements were considered “collective property” of the communities. Ms. Frausto added that any commercial use should involve compensation and collaboration with the communities. 

In 2022, Mexico passed a law prohibiting and criminalizing the unauthorized use of Indigenous and Afro-Mexican cultural expressions. Mexico’s law is designed to protect the Intellectual Property rights of its people. The issue here is that Mexico’s law has no reach outside of its borders because when a country enacts a law, it is usually only applicable to the actions that take place within the geographic region of that country. 

Mexico has set a strong example of how governments can empower communities by ensuring they maintain control over their heritage. Similar protections could be introduced in the U.S. by establishing legislation that recognizes cultural symbols and traditional designs as collective IP. U.S. IP law falls short of safeguarding cultural groups from appropriation. This gap in U.S. IP law leaves minority and Indigenous communities vulnerable to the uncredited and uncompensated use of their cultural heritage by the fashion industry.

#culturalappropriation #intellectualproperty #Mexico #fashionlaw