CIGI Papers No. 213 — April 2019 Curbing Cultural Appropriation in the Fashion Industry Brigitte Vézina CIGI Papers No. 213 — April 2019 Curbing Cultural Appropriation in the Fashion Industry Brigitte Vézina CIGI Masthead Executive President Rohinton P. 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Centre for International Governance Innovation and CIGI are registered trademarks. 67 Erb Street West Waterloo, ON, Canada N2L 6C2 www.cigionline.org Table of Contents vi About the Author vi About the ILRP 1 Executive Summary 1 Introduction 2 Setting the Scene: Cases of Cultural Appropriation in Fashion 5 What Is Cultural Appropriation? 7 Cultural Appropriation: Origins and Consequences 10 Principles for Using TCEs in an Appropriate Fashion 12 Policy, Legal and Practical Solutions to Curb Cultural Appropriation 15 Conclusion: Looking beyond Fashion 16 About CIGI 16 À propos du CIGI About the Author About the ILRP Brigitte Vézina is a fellow with CIGI’s International The International Law Research Program (ILRP) Law Research Program. At CIGI, she analyzes the at CIGI is an integrated multidisciplinary key challenges in the ongoing efforts to develop an research program that provides leading international system of protection for traditional academics, government and private sector cultural expressions (TCEs). Her research aims legal experts, as well as students from Canada to present ways of protecting TCEs on both the and abroad, with the opportunity to contribute domestic and international levels. She is currently to advancements in international law. an international law consultant at Brigitte Vézina – Law & Culture, where she advises clients on legal The ILRP strives to be the world’s leading and policy issues related to copyright and cultural international law research program, with heritage. From 2006 to 2016, Brigitte worked at the recognized impact on how international law World Intellectual Property Organization in Geneva, is brought to bear on significant global issues. Switzerland, as a legal officer in the Traditional The program’s mission is to connect knowledge, Knowledge Division, dealing with intellectual policy and practice to build the international law property issues related to TCEs. Brigitte also worked framework — the globalized rule of law — to in the Cultural Enterprise and Copyright Section support international governance of the future. at the United Nations Educational, Scientific and Its founding belief is that better international Cultural Organization in Paris, France, and with governance, including a strengthened international the Montreal-based intellectual property law firm, law framework, can improve the lives of people Robic. Brigitte holds an LL.B. from the University everywhere, increase prosperity, ensure global of Montreal (2002) and an LL.M. from Georgetown sustainability, address inequality, safeguard University (2005, with distinction). She has human rights and promote a more secure world. been a member of the Quebec Bar since 2003. The ILRP focuses on the areas of international law that are most important to global innovation, prosperity and sustainability: international economic law, international intellectual property law and international environmental law. In its research, the ILRP is attentive to the emerging interactions among international and transnational law, Indigenous law and constitutional law. vi CIGI Papers No. 213 — April 2019 • Brigitte Vézina number of recommendations may guide fashion designers into adopting respectful behaviour in Executive Summary relation to the use of TCEs in their creations. The fashion industry has faced several accusations Centrally, several concrete policy, legal and of cultural appropriation over the past decade. practical solutions can be developed at the For example, American clothing retailer Urban international level to put an end to cultural Outfitters made headlines in 2011 when it issued appropriation: the IP system can be adapted to Navajo-themed items, including underwear with offer adequate protection for TCEs; awareness can traditional patterns, much to the discontent of be raised among fashion designers and consumers the Navajo Nation. Likewise, French designer alike so as to deter cultural appropriation; and Isabel Marant was criticized in 2015 for designing initiatives can be carried out to strategically a dress similar to a traditional blouse that has support Indigenous fashion designers. been made for centuries by the Mixe people, an Indigenous community in Mexico. Cultural Cultural appropriation is not confined to appropriation may be summarily described as the world of fashion but manifests itself in the taking, by a member of a dominant culture, other sectors, such as film, music and art. of a cultural element from a minority culture, Furthermore, from an Indigenous, holistic without consent, attribution or compensation. viewpoint, TCEs are intrinsically linked to traditional knowledge, and developments in Cultural appropriation cases spark passionate the protection of TCEs can positively impact debate because while fashion’s borrowing of the protection of traditional knowledge. stylistic elements from other cultures is common practice, it can, in reality, be offensive to the holders of traditional cultures. Misinterpretation or disregard for the cultural significance of a traditional cultural expression (TCE), even if unintentional, can have drastic consequences, Introduction both culturally and economically. Calls for action to curb appropriation emphasize a Over the last two decades, the fashion industry need for Indigenous peoples to have better — ranging from luxury designers to mainstream control over their TCEs, including through the retailers — has developed a noticeable appetite intellectual property (IP) system and in line for all things traditional, ethnic, folkloric or with the United Nations Declaration on the Indigenous. Flipping through the pages of Rights of Indigenous Peoples (UNDRIP).1 fashion magazines or navigating the fashion blogosphere, one cannot avoid noticing the craze. Cultural appropriation may be explained, in part, by the jarring relationship between TCEs Many of the fashion designers partaking in this and IP, in particular copyright. While TCEs, such trend source their inspiration from the diverse as traditional designs or motifs, are a product cultures of Indigenous peoples from around the of the human mind, extant copyright law fails world and incorporate stylistic elements, such to provide adequate protection to TCEs, casting as patterns, motifs or design features, into their most of them into the public domain and thus creations. These elements often fall under the making them vulnerable to appropriation. For concept of TCEs developed by the World Intellectual instance, protection remains unavailable for TCEs Property Organization (WIPO). Unfortunately, that have been passed down the generations fashion designers sometimes use TCEs from and thus fail to meet the originality criterion. foreign cultures in ways that disregard the cultural significance for their holders2 and cause them Drawing from actual cases of cultural appropriation in the fashion industry and relying on IP laws and principles, in particular moral rights, a 2 The term “holder” is used in this paper to overcome a lack of agreed terminology on the legal status of the communities that create, hold, 1 United Nations Declaration on the Rights of Indigenous Peoples, GA Res develop and transmit TCEs down the generations. In some contexts, 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295, 46 ILM holders could more appropriately be referred to as “guardians,” 1013 (2007). “stewards” or “owners.” Curbing Cultural Appropriation in the Fashion Industry 1 profound cultural, social and economic harm. This its harmful consequences. Drawing from