Authenticity has become a popular metric to gauge the artistic merit of modern fashion designs. According to Miuccia Prada, “all our culture derives from other cultures, but authenticity is when you can add something of your own [to something already in existence] and push things forward.” In line with that way of thinking, fashion designers strive to create authentic garments and accessories that resonate with the consumers of today by refashioning traditional cultural expressions (TCEs), which are design elements embedded in traditional works of art.
TCEs are the creative products of indigenous communities. For indigenous peoples, TCEs are a reflection of their community’s cultural heritage and social identity. In addition, they can hold spiritual meaning, religious significance, or links to political notions such as self-determination. Although TCEs are passed down from generation to generation, they are subject to an infinite number of evolutionary adaptations, imitations, revitalizations, revivals, and recreations along the way. When fashion designers incorporate TCEs in their designs and add their own artistic touches to them, they are contributing to the cultural evolution of TCEs and broadening the context in which they are used.
The issue of cultural appropriation arises when fashion designers use TCEs without acknowledging, receiving authorization from, and/or compensating source communities. Cultural appropriation has been described as the “colonial occupation of indigenous art and design” because it can perpetuate inaccurate stereotypes, marginalize indigenous peoples, and enable corporations to profit at the expense of TCE holders.
Leveraging the Legal System
To combat cultural appropriation, indigenous peoples need to seek intellectual property (IP) protection for their TCEs. IP tools—such as trademarks, copyrights, geographical indications, and patents—can provide indigenous communities the legal leverage that they may need to oversee who can use their TCEs and how they can use them.
Indigenous communities need to invest in an IP strategy that will enable them to achieve their objectives, whatever they may be. In any case, indigenous communities must realize that IP-centric business models (i.e. royalty agreements, trademark licensing, etc.) hold tremendous potential to generate an export income for them and restructure profit sharing for garments and accessories that use TCEs. If indigenous communities fail to do so, fashion brands can absorb all the financial proceeds from the sale of culturally-inspired products.
Unfortunately, there are many gaps in existing IP laws that prevent indigenous peoples from receiving the IP protection that they so desire. These gaps range from specific technical limitations, such as the limited term of protection in copyright, to general conceptual and operational divides, such as the financial expenses associated with acquiring IP rights. As a result, indigenous communities need to make sure that their approach to curb cultural appropriation is not solely centered around IP management.
Launching an Enterprise
Whether they have IP rights or not, indigenous communities can market themselves as the undisputed owners of TCEs. If they are able to do so effectively, they will be able to influence the consumer perception and market value of fashion products with TCEs; the more sway they have in final market countries, the easier it can be for them to earn the credit and recognition that they deserve for their contributions to culturally-inspired products. Although TCE holders do not necessarily need IP rights to develop compelling marketing collateral, branding efforts that exploit IP assets are especially effective.
As they build brands and more and more fashion companies begin to recognize them as legitimate stakeholders for culturally-inspired products, indigenous communities need to begin expanding their corporate ties through an involvement in joint ventures, strategic alliances, and other collaborative efforts. By doing so, they can earn special benefits, such as the ability to negotiate specific design details with fashion designers, and address cultural appropriation before the fact.
Putting It All Together
The issue of cultural appropriation in fashion revolves around the inability of TCE holders to retain control over their TCEs in final market countries. In resolve, this article advises TCE holders to design a strategy geared to maximize their legal leverage and strengthen their market presence in final market countries, in tandem.
Although their vision should be to become self-sustaining, indigenous communities may initially need to seek outside assistance to act on the recommendations provided in this article. Fortunately, there are many intergovernmental organizations, nonprofits, and national governments that are willing to help them tackle cultural appropriation in fashion by provisioning political support and investing in capacity-building initiatives, such as the World Intellectual Property Organization (WIPO), Light Years IP, and Roots Studio.