Cultural Appropriation and Intellectual Property in Fashion
Introduction to Cultural Appropriation in Fashion
In the context of fashion, cultural appropriation occurs when members of a dominant group adopt cultural elements of minority groups without any acknowledgment, understanding, or compensation. It refers to the use of another person's culture, or more specifically, the stealing of ideas for clothing, accessories, and symbols that are significant to the group of people who hold the culture for profit or as a trend. (Logan, 2023). Although some may argue that culture is not owned and should be shared, the overuse of a particular culture by other groups of people can gradually erode and distort its meaning and purpose, eventually resulting in its appropriation or claim by others. Even though creativity and global influence are fundamental to fashion, the practice of appropriating cultural aspects has led to much discussion regarding the boundaries between inspiration and appropriation.
An increasing amount of people are realizing the importance of cultural awareness and respect as fashion companies face criticism for copying elements of marginalized cultures. (WWD, 2020). According to Dr. Benedetta Morsiani, this practice results in the exploitation of minority groups by dominant ones. For instance, famous designers like Jean Paul Gaultier and Donna Karan were influenced by African fashion, and their designs attracted international attention. However, the original African designers were not given the same appreciation. Gucci's Fall 2018 runway show featured white models who wore Sikh turbans, causing criticism for commercializing a religious practice. (WWD, 2024).
Some issues include whether companies should morally manage these challenges and whether they genuinely value ethnic diversity or exploit it for profit. Dr. Serkan Delice claims that there is a strong relationship between capitalism and cultural appropriation in the fashion industry. He also believes that the criticism around it is more about societal problems like racism and classism than it is about the act of appropriation itself. “From my perspective, the issue isn’t a lack of respect of cultures... The reason why I’m extremely critical of appropriation is because it makes the laborers invisible. When appropriation happens, the labor of the original producers becomes invisible and that is highly unfair.” (WWD, 2024). Eulanda Sanders argues that "crediting sources of inspiration is essential, and the translation if done, must honor and exhibit an understanding of the original source. If not done, then cultural heritage is diminished.” (WWD, 2024). This need for accountability shows the conflict between fashion as a way to share cultures and the industry’s habit of ignoring the importance of the cultures it takes from. It raises questions about what fashion companies should do, both morally and legally, to handle cultural appropriation and create practices that are fair.
Trademarks in Cultural Appropriation: The Navajo Nation Case
We spoke to intellectual property lawyer Nicole Gaither to learn whether the law can prevent cultural appropriation. We learned that the law typically is not a solution to the problem of cultural appropriation. Ms. Gaither believes that attorneys have a responsibility to guide clients on using culturally sensitive trademarks thoughtfully and respectfully. She highlighted Navajo Nation v Urban Outfitters as a key recent court case involving cultural appropriation. In that lawsuit, the Navajo Nation sued Urban Outfitters for violating its trademarks by using the "Navajo" name on items without permission. Ms. Gaither explained that case:
Navajo Nation alleged that Urban Outfitters had violated its trademark rights and misrepresented its goods as being created by the Navajo Nation, which is prohibited under the Indian Arts and Crafts Act, and sold goods with the Navajo name that used traditional Navajo tribal patterns. This Act protects Native American tribes from false advertising and unauthorized use of their cultural symbols and crafts in marketing. Urban Outfitters initially attempted to dismiss the case, claiming that the Navajo Nation was using its trademarks improperly, and also claimed “fair use,” suggesting that the term "Navajo" was used merely to describe a style of design rather than to imply Navajo origin. However, U.S. District Judge Bruce D. Black rejected both arguments, allowing the case to proceed. The parties later settled the case. (The Columbia Journal of Law & the Arts, 2019).
This is an image from one of the Navajo Nation’s U.S. trademark registrations, in this case for tableware, decorative bells, decorative boxes, bracelets, cuff links, cups, and earrings:
The Navajo Nation case is a good example of a community asserting its legal right to prevent unauthorized use of its identity in fashion. This case also raises an important question: can a culture really be owned? This question can be difficult to answer. Ms. Gaither says that while it’s important to protect the cultural elements of marginalized communities, figuring out who owns these things is not easy. Culture is usually created by a whole group, not just one person, so deciding who gets compensated for it is complicated. If something was created hundreds of years ago, how would ownership be determined? Should it be the entire community, a leader of a tribe, or the descendants of the original creators? It’s hard to say exactly what parts of a culture should be protected and how to prevent misuse without stopping people from sharing and learning from each other. Protecting culture is important, but deciding who owns it can be complicated and needs careful thought.
Trademark law can help protect certain parts of a culture, but it doesn’t cover everything that makes a culture unique. Because of this, many marginalized communities end up relying on public support, not laws, to protect their heritage.
Public Outrage and Cultural Symbols
Ms. Gaither had interesting thoughts about the legal aspects of cultural appropriation in the fashion industry. At a 2023 panel discussion called "When Imitation Is Not Flattering: Cultural Appropriation in Trademarks," Ms. Gaither talked about how fashion businesses frequently disregard the historical and social value of cultural symbols by using them as aesthetics. She described examples in which businesses such as Gucci and Prada used racially offensive images of the Sambo Characters, which caused public outrage and led to calls for legal action. (Alt Legal Team, 2023). After the outrage surfaced, Civil rights lawyer and activist Chinyere Ezie claimed on social media that the brand's storefront displays and monkey keychain design at its SoHo location in New York City were reminiscent of Little Sambo, a character in a children's book with clearly racist illustrations. (Cady, 2018). Since then, Prada has apologized on Twitter, removed the keychain from their website, and taken the items down from their displays and retail locations.
Ms. Gaither explained some noteworthy instances where fashion brands faced backlash. She mentioned cases like Gucci and Prada using racially offensive imagery, such as Sambo characters, in their designs. She also emphasized the need for attorneys to provide good advice to their clients on these issues.
Bad Publicity: A More Effective Deterrent?
Although brands or celebrities don’t usually break any laws while attempting to copy a fashion that’s based on a certain culture, they still may face major backlash when it comes to cultural appropriation in fashion. Similar problems have been experienced by celebrities, such as Kim Kardashian's decision to call her shapewear "Kimono." Even after being criticized, Kardashian attempted to trademark "Kimono." In April 2018, her business, Kimono Intimates, Inc., submitted a trademark application for a number of classes, including apparel and retail services. Many people accused the brand of attempting to claim ownership of an important, traditional Japanese symbol, which meant a lot to the Japanese. (Lutzky, 2019). Even in the absence of clear legal restrictions, societal and cultural forces can impact the other appropriator's decisions, as Kardashian announced that she would change the name to “Skims” after first defending it. These incidents show how important social pressures are in holding public people and companies responsible. Public criticism has emerged as an effective tool for resolving issues such as cultural insensitivity, as the law does not always address them.
We asked Ms. Gaither about the legal actions marginalized communities can take to protect their cultural heritage and elements or whether bad publicity is the most effective deterrent.
Where do we draw the line?
Deciding where cultural appreciation ends and appropriation begins is tricky. It mainly depends on intent, respect, and giving credit. When designers work with people from the culture they’re inspired by, paying them fairly and acknowledging their work, it is considered appreciation. (Logan, 2023). However, if they take cultural elements without understanding their meaning or compensating those who created them, it crosses into appropriation.
The community and social media have made public opinion a good tool for change, but it cannot take the place of a planned approach to cultural understanding. In the end, the fashion industry needs to consider its obligation to respect the cultures it appropriates, find a balance between originality and respect, and make sure that inspiration doesn't become exploitation.
At the panel discussion noted above, Ms. Gaither and her colleagues provided six key points that lawyers should consider when advising clients on cultural appropriation issues.
“Follow USPTO Rules of Professional Conduct §11.201
Exercise due diligence
Ask clients what the term means (what do they think it means and conduct your own research to determine what it means and if there is cultural significance)
Don’t be afraid to stand up to clients and tell them it’s not a good idea, if you do use it there is a particular approach to take, namely, involving someone from the community
You have the right to refuse to apply for the registration or refuse the engagement
If you don’t have much diversity in your background, hire a diverse team of people who may be more culturally aware.”
References
Anyanwu, Obi, and Tonya Blazio-Licorish. “How Cultural Appropriation Became a Hot-Button Issue for Fashion.” WWD, WWD, 5 Nov. 2020, wwd.com/feature/how-cultural-appropriation-became-a-hot-button-issue-for-fashion-1234579968/.
Lang, Cady. “Prada Pulls Keychain after Blackface Comparison Backlash.” Time, Time, 17 Dec. 2018, time.com/5480583/prada-blackface/.
Logan, Serenity. “Fashion: The Thin Line between Appropriation and Appreciation.” Millennials in Motion Magazine, 27 Sept. 2023, mimmag.com/fashion-the-thin-line-between-appropriation-and-appreciation/.
“Navajo Nation and Urban Outfitters Reach Settlement over Trademark Rights.” Navajo Nation and Urban Outfitters Reach Settlement Over Trademark Rights | The Columbia Journal of Law & the Arts, 2 Aug. 2019, journals.library.columbia.edu/index.php/lawandarts/announcement/view/42.
Team, Alt Legal. “Alt Legal Connect Session Summary: When Imitation Is Not Flattering: Cultural Appropriation in Trademarks.” Alt Legal, 12 Jan. 2024, www.altlegal.com/blog/connect2023-cultural-appropriation/.
“United States: Claims of Cultural Appropriation Sink Kim Kardashian’s Kimono Brand.” International Trademark Association, 15 July 2020, www.inta.org/perspectives/ip-snippets/united-states-claims-of-cultural-appropriation-sink-kim-kardashians-kimono-brand/.