When Cultural Inspiration Crosses The Line

By Nicole Rowlands

In late October, the Fashion Institute at Fordham Law School sponsored an event that addressed the issue of cultural appropriation (or rather, misappropriation) in the fashion industry. More specifically, the event advertisement asked the following: “When it comes to culture, the world’s closets are filled with borrowed and reimagined finery – but when does inspiration shade into cultural appropriation?  And at what point should counsel comment?” The discussion was held at the De Buck Gallery in Chelsea, which showcased exhibitions of Zevs, a popular street artist similar to the infamous Banksy.

The gallery was cozy, so capacity was limited. Only New York’s best dressed “fashion attorneys” and a few lucky law students attended. The reception welcomed the small crowd with an assortment of sweets and a spot of bubbly champagne.

After some chit-chat and a drink (or two), everyone sat down to listen to the speakers – Professor Susan Scafidi, Academic Director of the Fashion Law Institute at Fordham; Katrin Zimmermann, designer of Ex Ovo jewelry; and Katherine E. Lewis, Attorney Advisor for the Smithsonian Institute.

First to speak was Ms. Zimmermann who described her jewelry line as, “modern high-end ‘bridge’ jewelry sold in museums of modern art in the U.S. and worldwide.”  Ms. Zimmermann discussed the cultural inspiration she uses in her jewelry making. Perhaps most enticing was Ms. Zimmermann’s answer to the question, “When searching the world for inspiration, where do you draw the line?” She responded, “There shouldn’t be a line,” and clarified that there was a stark difference between “inspiration and misappropriation.”

Next up was Professor Scafidi, who examined the controversy surrounding cultural inspiration and the fashion industry, and offered examples of the extreme cultural misappropriation that we often see on runways and product lines. For instance, Matthew Williamson’s Summer 2008 Collection included two Ethiopian dresses that were so similar to Ethiopia’s traditional national dress that the Ethiopian Ministry of Foreign Affairs took to investigating the matter.  But nothing came of the case after Mr. Williamson issued a formal apology and an explanation that the appropriation came from a deep “admiration… for the traditional dress of the Ethiopian people.”

In November 2012, the Victoria’s Secret Fashion Show featured one of its models in a Native American-style headdress, leopard print underwear, and high heels. After the outfit was condemned by many as a display of ignorance toward tribal culture and history, Victoria’s Secret publicly apologized and assured the public that it would not include the outfit in the show’s television broadcast or in any marketing materials.

It wasn’t even a year earlier that Urban Outfitters was in the soup over the same kind of transgression. But that time, a public apology was not enough to save the company from harsh criticism — and even a lawsuit.

In 2011, Sasha Houston Brown, a Native American woman from Minneapolis published a harsh public letter to the CEO of Urban Outfitters, expressing anguish over Urban Outfitters’ “mass marketed collection of distasteful and racially demeaning apparel and décor.” Ms. Brown felt that the company was legitimizing racism under the guise of cultural “appreciation.”

There is nothing honorable in selling items like the Navajo Print Fabric Wrapped Flask and Navajo Hipster Panty, said Ms. Brown. “Navajo” isn’t an aesthetic movement like punk rock or gothic revival – it is a legal entity, a tribe of people, and an actual nation.

It’s also a trademark.

Shortly after the hype surrounding Ms. Brown’s letter, the Attorney General of the Navajo Nation wrote to Urban Outfitters asking the corporation to cease and desist using the Navajo trademarks to sell clothing and accessories.

When Urban Outfitters refused to take down its Navajo-inspired products, the Navajo Nation sued  alleging trademark violations, unfair competition, and violations of the Federal Indian Arts and Crafts Act (which prohibits falsely claiming, or even implying, that a product is Native American-made when it is not).

The Navajo Nation claimed the “Navajo panty” and a “Navajo liquor flask” were “derogatory and scandalous,” And that the product line was a profound cultural offense, especially considering the sale and consumption of alcohol is banned on the reservation. Urban Outfitters responded that, in fact, there was no likelihood of consumer confusion between an authorized Navajo clothing item and the panty or liquor flask and further, that the contested product wasn’t a “handicraft” thus, prohibiting the items under the Federal Indian Arts and Crafts Act.

Both parties were unable to resolve the quarrel after a court-ordered mediation failed. Instead, they opted for a case management plan – but this means a trial wouldn’t take place until sometime after May 2015.

The last speaker of the evening was Ms. Lewis, who focused her discussion on the importance of cultural identity and explained the roadblocks that indigenous communities face when attempting to protect their works under U.S. copyright law. Just like any artist, works created by individual indigenous artists depend on intellectual property protection under the U.S. copyright law.

The Copyright Act of 1976 establishes that a copyright subsists in any “original works of authorship fixed in any tangible medium of expression.” (Emphasis added.)

But the art of indigenous cultures doesn’t neatly fall into this category. Indigenous cultures’ art has no one author to claim “authorship.” Additionally, the contemporary works are usually based on designs created centuries ago and U.S. law limit the terms of authorship protected by copyright (usually life of author plus 70 years).

In 2009, one professional photographer, Patrick Cariou, sued another photographer, Richard Prince, for copyright infringement when he became aware that Mr. Prince had used approximately 35 of Mr. Cariou’s photographs in his art series “Canal Zone.” Mr. Prince took the photographs from Mr. Cariou’s publication, “Yes, Rasta,” a series of landscapes and portraits of Rastafarians in Jamaica, for publication in a book, but transformed them by enlarging, cropping, tinting, painting over, and collaging the photos with those of other artists.

Although the case did not involve indigenous communities, it is demonstrative of appropriation and the “fair use” arguments that potential infringers of indigenous communities use to defend their designs.

The federal district court granted Mr. Cariou’s motion for summary judgment and found that Mr. Prince had acted in bad faith by failing to seek a license from the photographer. This took the licensing element of copyright protection a step further than ever before and put an affirmative duty on the defendant to seek a license first, or else risk being found to have acted in bad faith by a court. But on appeal, the Second Circuit reversed the district court’s decision and emphasized the broadness of the fair use doctrine. Mr. Prince appropriated, but he altered the photographs enough so that they became his original work.

The district court ruling in Cariou would have moved the law closer to compulsory licensing and would have potentially made a great impact in the protection of indigenous communities and their works. However, there was no such luck for indigenous communities.

Instead, nonindigenous groups continue to misappropriate indigenous cultural traditions with little remedy for indigenous communities.

As for the Navajo Nation, it looks like they’ll be waiting quite some time before they see any remedy/ Unles,s of course, the Nation and Urban Outfitters can work out the differences and reach an agreement. It seems like a long shot – but then again, who knows what will happen between now and a Spring 2015 trial?


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