Cultural and Intellectual Property Appropriation: Disputes Over Culturally-Inspired Fashions

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

If you haven’t heard already, New York Fashion Week is here! As usual, a lineup of awe-inspiring shows is expected to roll out over the next several days, as it does every September and February, highlighting the latest fashion trends of some of world’s most famous designers.  One of the big stories surrounding New York Fashion Week this year is the amount of cultural diversity expected to appear on the runway.  The Council of Fashion Designers of America recently penned a letter to New York Fashion Week designers, stating “[a]s you cast your New York Fashion Week shows, please remember to promote diversity and inclusion, on and off the runway.”  The Council also released a diversity report making the case for cultural diversity in fashion.  Designers are expected to take heed. In fact, they did just that for the September New York Fashion Week shows, where over 40 percent of New York’s runway models were reported to be models of color.

Although casting for runway shows appears to be moving in the direction of cultural diversity, some believe the fashion industry itself is facing a crisis with cultural appropriation.  Cultural appropriation is the co-opting of intellectual property, cultural expressions, traditional knowledge or artifacts from another’s culture (usually a minority or indigenous group) without their input, consent, credit, or compensation.  Many of us are familiar with claims of cultural appropriation in the entertainment world (for example, Elvis appropriating black music or the Kardashian sisters co-opting hairstyles traditionally worn by women of African descent).

In the fashion world, claims of cultural appropriation are nothing new. Critics argue that western designers steal traditional design elements from marginalized people, which equates to intellectual property infringement, while defenders respond that it’s not cultural appropriation at all, but instead cultural appreciation or inspiration. Sometimes these disputes lead to lawsuits and, unfortunately for brands accused of appropriation, they often play out in the media as well.

Below (in no particular order) are five fashion industry cultural appropriation disputes that made headlines, with some even making their way to court.

Isabel Marant – Mixe Embroidery Design

French designer Isabel Marant, known for her bohemian aesthetics, came under fire when an indigenous Mixe community of Oaxaca, Mexico, accused Marant of copying its traditional embroidery design. The Mixe community alleged that Marant engaged in “plagiarism” by using its 600 year old cultural expression and claiming it as her own novel creation.  This led to a Twitter storm, with posts comparing Marant’s design with the Mixe design, and discussions concerning cultural appropriation in the fashion industry.

Marant responded that she was simply inspired by Oaxacan culture and did not claim exclusive rights to the design.  Ultimately, the Mixe community never took legal action against Marant over the design, but, in an odd twist of fate, French ready-to-wear brand Antik Batik did.  Antik Batik claimed to be the true owner of the copyrights to the Mixe embroidery design, which led to a court battle in France.  Ultimately, the French court held that neither Batik nor Marant could claim rights to the design because it originated from Mixe communities in Oaxaca.  Oaxaca’s congress later declared the Mixe community’s traditional designs and language as Intangible Cultural Heritage per UNESCO guidelines. Although it is unclear whether this protected status equates to intellectual property rights belonging exclusively to the Mixe community, it recognizes their designs as unique to, and originating in, Mixe culture.

Urban Outfitters – Navajo Trademark

In 2012, the Navajo Nation filed a complaint before the U.S. District Court for the District of New Mexico against U.S. fashion retailer Urban Outfitters and its related entities, alleging trademark infringement for the use of the mark NAVAJO in connection with clothing and jewelry. The complaint alleged that Urban Outfitters used the Navajo Nation’s federal registered trademark NAVAJO for fashion products in such a way that falsely suggested they were associated with or made by American Indians, in violation of federal and state trademark laws.  The Navajo Nation also alleged that Urban Outfitters used imagery such as tribal patterns comprised of geometric prints and designs fashioned to mimic and resemble Navajo Indian and tribal patterns, prints, and designs. According to the Navajo Nation, this violated the Indian Arts and Crafts Act, a federal law that makes it illegal to offer or display for sale, a good that “falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization.”

Urban Outfitters plead a fair use defense, on grounds that its use of “Navajo” merely described a type of style or print.  After a long-fought battle in court, the parties eventually settled their dispute in 2016.  Urban Outfitters and Navajo Nation ended up entering into a supply and license agreement, by which the parties planned to collaborate on a line of Native American jewelry, which sounds like a very good ending for both parties.

MAC Cosmetics – “VIBE TRIBE” Collection

MAC Cosmetics was called out for cultural appropriation after it debuted its VIBE TRIBE line of cosmetics in May 2016.  To market its product, the company used the trademark VIBE TRIBE, together with a trade dress (i.e., product packaging) that many believed looked like Native American prints from the American southwest. MAC also allegedly adopted an ad campaign featuring “ethnic-looking” models wearing feather hair accessories and tribal attire.  Despite product names such as “Arrowhead” for lipstick, “Adobe Brick” for blush, and “Wild Horses” for eyeshadow, MAC stated that its collection “has absolutely no connection to nor was it inspired by the Native American cultures.”  Although no lawsuits were filed by Native American tribes, MAC faced a backlash in social media, with complaints from consumers and others, who felt that MAC was engaging in cultural appropriation.

Ports 1961 – “Only Love Matters” and “Every Color Matters” Shirts 

Ports 1961, a Canadian-based fashion brand, got into serious trouble when its models wore shirts bearing the wording ONLY LOVE MATTERS and EVERY COLOR MATTERS during a runway show in 2017. Many social media users felt the fashion brand’s use of these slogans was a failed attempt to be socially aware, and was insulting to the Black Lives Matter movement. Others saw it as yet another example of the fashion industry attempting to appropriate the cultural expressions of a minority group.  Interestingly, various individuals and companies have attempted to register the slogan BLACK LIVES MATTER as a trademark before the U.S. Patent and Trademark Office (“PTO”).  However, these attempts have largely failed.  According to the PTO, BLACK LIVES MATTER is merely an informational or political slogan and therefore does not function as a trademark, which is probably why no one brought trademark infringement or dilution claims against Ports 1961.

 

Luxury Brands and The Maasai of Eastern Africa

The Maasai tribe are an indigenous, semi-nomadic people settled in Kenya and northern Tanzania. The tribe is known for their distinct traditions, customs, and dress, which is why it is no surprise that their look is often imitated, at least according to Washington, DC-based advocacy group Light Years IP, which specializes in “intellectual property value capture.” According to Light Years IP, more than 1,000 companies,  including fashion brands Louis Vuitton, Calvin Klein, Diane Von Furstenberg, and Ralph Lauren, have all used Maasai iconography to sell their products, and many fashion companies have allegedly even used their name (with minor modifications) as a trademark.  Light Years IP reports that the tribe’s imagery is so widely copied that the estimated value of the “Maasai brand” is more than $10 million a year, despite the fact that 80% of the Maasai people live below the poverty line and have gained zero benefit from the alleged use of their cultural expression.

Bergdorf Goodman sells a “Masai Striped Metallic Single-Button Jacket” for almost $900 (now on sale for $400).  Neiman Marcus carries several “Masai”-branded dresses and accessories. Louis Vuitton is alleged to have appropriated the Maasai shuka cloth, which appeared in the brand’s Spring/Summer 2012 menswear collection.  At one point, Land Rover (the luxury car company) even attempted to register the mark MAASAI in the U.S. in connection with vehicles, but the company ultimately abandoned their application.

Light Years IP is working with the Maasai people to ensure that they are compensated for the use of their name and cultural expressions.  In 2018, the Maasai struck their first deal with Koy Clothing, a UK retail company, which agreed to pay a license to use Maasai-based designs for their clothing line. Light Years IP, together with the Maasai Intellectual Property Initiative Trust, are looking to have others pay to use Maasai cultural expressions.

Intellectual Property Protection of Cultural Expressions and Takeaways for Brands Owners

According to the World Intellectual Property Office (WIPO), traditional cultural expressions raise particular legal and policy questions in intellectual property law.  As we have discussed in prior posts, fashion can potentially be protected by existing IP laws, including copyrights and trademarks. For example, traditional cultural prints may be exclusively owned by a particular organization or community under U.S. copyright law (so long as they are original, creative, and physically or conceptually separable from the function of the article) or trademark law (provided they are nonfunctional, distinctive source identifiers).  Some countries also have special legislation for the protection of traditional cultural expressions.  Brand owners should use care when adopting prints, trademarks, product designs, packaging, and advertising campaigns that might appear to represent a cultural expression.  Companies should consider these issues as part of their intellectual property clearance procedures and consult with legal counsel, particularly for important designs that may be part of a global ad campaign.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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