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On "Dia de la Raza" thinking again about the protection of cultural heritage in the fashion industry

Posted by Giselle Ayala | Oct 12, 2020 | 1 Comment

On October 12th, the United States commemorates Columbus Day. This is a holiday that brings us back to the landing of Christopher Columbus in the Americas in 1492. However, in South America, it is called "Dia de la Raza" (Day of Race). On this day, people gather to honor the traditions and cultural heritage of the people of the Americas, who have contributed to enrich western society with their art, songs, dance, and more.

From the perspective of Intellectual Property Law, this is an interesting day to think of the protection of cultural heritage. As opposed to other valuable assets, when it comes to the cultural heritage the first challenge is proper categorization. Cultural heritage exists in the form of tangible property, cultural relics, such as works of art, manuscripts, books, and other objects of historic or archeological interest. There are also intangible property, traditional and cultural expressions. Considering their value, laws about the protection of cultural relics focus on retention, repatriation, preservation, and authentication of the cultural property. [1] Furthermore, protecting cultural relics is a task that involves the joint efforts of national lawmakers and the international community. However, when it comes to traditional and cultural expressions, protection is much more difficult, especially because of the difference in the scope of the claims that can be made on behalf of culture and those that can be made on behalf of an individual or legal entity. 

Cultural heritage protection laws intend to create awareness as to the priceless assets that traditional communities contribute to society and to achieve adequate protection. They also promote the privacy and preservation of these communities, so that their sacred objects and expressions are not reproduced, copied, and distributed without authorization. In other words, "secrecy is an integral part of the sacredness of certain objects, stories, songs and rituals, and as such, instrumental in maintaining a certain social structure within the cultural group"[2] 

Internationally, there are different treaties in place. The Convention on the Safeguarding of Intangible Cultural Heritage (2003 UNESCO), the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005 UNESCO), and the Declaration on the Rights of Indigenous Peoples (DRIPS), which exists to protect, safeguard and ensure respect for the cultural heritage, traditional knowledge and traditional cultural expressions of indigenous peoples. Taken together, conventions, declarations, and laws have helped to establish an important framework for the protection of cultural heritage. However, are these instruments enough? International awareness is probably not enough if the communities themselves are ignorant about their rights. Local and national efforts to raise awareness as to the importance of these issues are necessary.

Equally important is the fact that many industries have failed to recognize the contributions that traditional and cultural expressions have made to their creative process. For instance, the fashion industry. There is no doubt, whether it is trademarks, patents or copyright inspiration creates no duty of compensation or recognition. Though, drawing the line between inspiration and infringement is not an easy task. 

  • In 2011, Kim Jones, an English fashion designer, debuted with one of its most remarkable menswear collection for Louis Vuitton. The Africa-inspired collection, which mixed different unique elements, was criticized for misappropriation of the traditional elements of the Maasai community. Jones, who grew up in Kenya and Tanzania, affirms that the collection was inspired by experiences from childhood.[3] However, the Maasai community does not see it the same way. From their point of view, Jones was never authorized to use any of the traditional designs incorporated into the collection. Additionally, there was no attribution either. To respond to this phenomenon of unauthorized uses of their name and traditional prints, the Maasai decided to take legal action and embarked on a campaign to raise awareness of the issue. [4]
  • Since 2013, the Kaqchikel Maya community has also embarked on a wide campaign to raise recognition and awareness about their traditional designs associated with their history, art, and cultural expressions. Meanwhile, the Navajo Nation has also made important efforts to protect the use of their prints and designs in clothing and western accessories. Unlike other non-U.S. tribes, the Navajo community relies on federal laws like the Lanham Act and the Arts and Craft Act. [5]
  • In 2015, a controversy regarding copyright laws and the misappropriation of designs "inspired" by Mexican elements arose between Isabel Marant and the French brand Antik Batik. In this case, a French court not only denied the petitions of the plaintiff, but the court also stated that the designs used to created Ms. Marant's Spring/Summer collection were owned by the People of Oaxaca, Mexico. [6]
  • In April of this year, a new controversy arose as to the rights in designs of clothing sold by the well know website MyTheresa. According to the Sealaska Heritage Institute Inc. plaintiff in this action filed in a federal court in Alaska, the goods sold by MyTheresa run afoul of the law. The website sells infringing goods that infringe copyright laws and misappropriate the patterns and designs historically associated with Native American committees. [7]

The cases cited above are just a few. In many instances, the fashion industry has been involved in disputes about misappropriation and misuse of the cultural heritage of long-standing communities. In this context, it is clear that more needs to be done, so that traditional communities can protect their rich cultural heritage.  Among those actions that communities, non-profits, policymakers, and legal practitioner can take are:

  • Development of campaigns that raises awareness as to the different sources of protection that the law office to preserve ownership, authorship, and control over their tangible and intangible cultural heritage. 
  • Procurement of legal counsel to register artworks, designs, traditional songs, and similar works of authorship to enable communities to enforce their rights. 
  • Procurement of legal counsel to enter into legal agreements that allow communities to keep control over the use and commercialization of their intangible and tangible cultural heritage.

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[1] Peter K. Yu. Cultural Relics, Intellectual Property, And Intangible Heritage.  81 Temp. L. Rev. 433.

 [2] Id. Citing Sarah Harding. 81 Temp. L. Rev. 433, 455.

[3] Menkes, Suzy. A Vote for Creative Clout. Available at: https://www.nytimes.com/2011/06/24/fashion/kim-jones-debut-at-louis-vuitton-is-a-vote-for-creativity.html

[4] Want to Use the Maasai Name or Print? You Have to Pay for That. Available at: https://www.thefashionlaw.com/want-to-use-the-maasai-name-or-print-you-have-to-pay/

[5] The Guatemalan Weavers Are Sick of Being Copied by the Fashion Industry. Available at: https://www.thefashionlaw.com/these-guatemalan-weavers-are-sick-of-being-copied-by-the-fashion-industry/

[6] Isabel Marant Wins Case Over “Stolen” Tribal Design. Available at: https://www.thefashionlaw.com/isabel-marant-wins-case-over-stolen-tribal-design/.

[7] This $2500 Sweater Being Sold by MyTheresa, Naiman Marcus Violates the Indian Arts & Crafts Act, Per New Lawsuit. Available: https://www.thefashionlaw.com/mytheresa-neiman-marcus-are-being-sued-for-sell-a-sweater-that-allegedly-violates-indian-arts-crafts-act/

About the Author

Giselle Ayala

Giselle Ayala Mateus is a NY attorney with comprehensive experience in transactional law, creative agreements, business formation, and immigration law. She is also the founder of Focus Juridico a not-for-profit project focused on supporting Latin American entrepreneurs and artists.

Comments

Fran Reply

Posted Oct 28, 2020 at 08:04:55

Very interesting.

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