It’s fairly common for fashion designers to take stylistic inspiration from a variety of sources. Cross-cultural influences are nothing new and they greatly enrich creative practices, but there’s a boundary of respect that definitely needs to be set. This boundary seems to be one, which (western) designers regularly trip over.

Urban Outfitters and KTZ are just two of the culprits

For instance, in 2015, UK fashion label KTZ copied a traditional Inuit parka design onto a men’s sweater (tellingly titled “Shaman Towelling Sweatshirt”) with a hefty price tag of over 700 USD. In the picture above, you can clearly see just how exactly KTZ traced the features of the Inuit design. The label kept the colours and the positions almost without change. After protest inititated by Nunavut Salome Awa (the depicted shaman’s great-granddaughter), KTZ removed the sweater from sale and apologized for the “unintended offense”, but did not offer any monetary compensation.

According to Awa, KTZ’s design, constituted “a mockery” of her great-grandfather’s “spiritual well-being”.

Similarly, Urban Outfitters was sued by the Navajo nation in 2012, because the American label used both the nation’s name (registered as a trademark) as well as traditional designs on its products that included “Navajo Hipster Pants” and “Navajo Print Flasks”. That case had been ended by a licensing agreement settlement. Urban Outfitters had been in trouble over similar behaviour in the past, e.g. over its sale of traditional Palestinian keffiyehs as “anti-war woven scarves”.

Another example is French designer Isabel Marant, known for her bohemian aesthetics, who came under fire when the indigenous Mixe community of Oaxaca, Mexico, accused her of copying their traditional embroidery design. The Mixe community alleged that Marant engaged in “plagiarism” by using its over five hundred year old cultural expression and claiming it as her own novel creation. This led to a an éclat, with posts comparing Marant’s design with the Mixe design, and discussions concerning cultural appropriation in the fashion industry.

What Cultural Appropriation means

Why is this a problem?, some may ask. Designers get inspired by foreign designs all the time. Why is the situation with e.g. indigenous people different?

Cultural appropriation sparks passionate debate because it arises in a bunch of legal and policy issues. To start, not all forms of cultural borrowing are undesirable. In multicultural societies, it is important to safeguard freedom of expression and not to hinder cultural exchanges and interactions. Therefore, curbing cultural appropriation in fashion does not amount to a total and un-nuanced restriction on all uses of traditional cultural expressions. A diversity of cultural influences is what makes fashion evolve and thrive. A respectful interpretation of the world’s cultures can allow all cultures to mutually enrich themselves and bring about genuine benefits to society.

However, much traditional clothing is not simply functional or ornamental but is infused with meaning. It is part of the identity of the Indigenous communities that use it. The danger of appropriation is that the cultural product might one day be completely disassociated from its source community, a result that is akin to the erasure of a community’s cultural identity. Further, cultural appropriation often occurs as the backwash of colonization, and contributes to widening existing divisions and perpetuating patterns of historic dispossession and oppression.

What constitutes appropriation?

Since there’s no legal definition, the term cultural appropriation is (though widely used) rather fuzzy. According to the WIPO it can be described as an act by a member of a relatively dominant culture of taking a traditional cultural expression and repurposing it in a different context, without authorisation, acknowledgement and/or compensation, in a way that causes harm to the traditional cultural expression holders. Additionally, one must consider power imbalances.

This definition could form a basis on which to start building policies and laws to protect Indigenous designs. Eventually we might achieve an equilibrium between designer’s freedom and the protection of cultural heritage.

What can we change?

In general, western intellectual property law does not mesh with Indigenous traditions regarding authorship and ownership. For example, copyright law does not recognize collective ownership by a community, but only for the creator(s) of a specific work. Also, the term of protection is generally much too short to protect Indigenous art.

Trademark law doesn’t suffer from the same time limitations, but likewise is not a good fit. To qualify, a pattern or design would need to have acquired “distinctiveness” or “secondary meaning” . As a stop-gap measure, some Native American nations trademark their name (as the Navajo in the case against Urban Outfitters), which at least prohibits others from using those.

Outside of the United States, the Maasai—an Indigenous group living in Kenya and Tanzania—also look to trademark laws to better control the use of their cultural products by commercial users. As part of an ongoing effort, the Maasai IP Initiative Trust has collaborated with US-based groups, to recover trademarks from major corporations. If the Maasai’s trademark rights are successfully enforced, licensing revenues are estimated to go as high as 10 million USD a year. According to the Maasai IP Initiative, this has the potential to benefit the Maasai tremendously because licensing revenues could be used to support the local community both socially and economically

An idea could be to extend concepts regarding the acknowledgment of having used someone else’s work. Copyright law already states that the public has to respect creators and their works. That protection could be extended to traditional cultural expressions where a sole creator is impossible to track down. This way, policy-makers could prevent the disrespectful use of traditional cultural expressions, in line with Article 31 of the UN Declaration on the Rights of Indigenous People.

The WIPO Intergovernmental Committee is working on a legal instrument to provide IP protection for Indigenous people’s cultural expressions. Extending moral rights to traditional cultural expressions is one possible avenue to help with the problem of cultural appropriation.

Within the current legal framework, fashion designers can engage with other cultures and use traditional cultural expressions without falling into the cultural appropriation trap by following four principles: understanding and respect for the holders of traditional cultural expressions, respectful transformation and reinterpretation of traditional cultural expressions, acknowledgement and recognition of their holders and most importantly: engangement with them through explicit request for authorization and collaborative partnerships.

Picture: The Inuit garment/KTZ AW15 – Extract from ‘Northern Voices’ via thestar.com/via kokontozai.com