Fashion Law: appreciation vs. appropriation
Gargi Yadav, a 3rd Year law student pursuing BBA LLB (Hons.) from The Northcap University explains the relation between appreciation and appropriation in fashion law.
Perhaps the most clear-cut and significant definition of cultural appropriation was given by Susan Scafidi, an author and law professor at Fordham University, who wrote in her book “who owns culture?: Appropriation and Authenticity in American law” as follows.
“Taking intellectual property, traditional knowledge, cultural expressions, or artifacts from someone else’s culture without permission. This can include unauthorized use of another culture’s dance, dress, music, language, folklore, cuisine, traditional medicine, religious symbols, etc. It’s most likely to be harmful when the source community is a minority group that has been oppressed or exploited in other ways or when the object of appropriation is particularly sensitive, e.g. sacred objects.”(1)
Susan Scafidi, “Who Owns Culture?: Appropraition and Authenticity in American Law”
While this may appear to be a well-intentioned act that treads on the foundation of cultural inspiration, the danger of such appropriation is that the cultural outcome may one day become entirely disconnected from its original community.
In fashion, cultural appropriation refers to the usage of non-dominant culture in a way that disregards its original meaning or fails to give credit to its source. It is not a new phenomenon but has existed for decades. Consider the seventeenth century. The three-piece suit, which is the typical ensemble of Islamic nations, was adopted by English and French aristocracy. Similarly, dandies from the English Regency period adopted the Indian “churidar” into the slim fitting pants.
“Appropriation occurs when a style leads to racist generalizations or stereotypes of where it originated, but is deemed ‘high fashion,’ ‘cool’ or ‘funny’ when the privileged take it for themselves. When power is imbalanced, cultures are no longer mingling; they’re being redefined externally by louder voices.”(2)
Anja Young, The Stanford Daily
Certainly, continuing to wear appropriative clothing narrows cross-cultural dialogue, removing opportunities for true understanding while watering down massively significant cultural tokens, reducing their significance to nothing more than a high-fashion accessory to wear to the latest music festival.
Gucci Fall Winter 2018/2019
Gucci has received a lot of heat for its goods, and two of the more talked-about ones emerged from the Autumn/Winter 2018 catwalk. The company debuted a wool balaclava cardigan black turtleneck sweater with a mouth cut-out and red panels that appear like exaggerated lips—in February of this year. It drew outrage almost immediately because to its similarity to blackface caricatures. Soon after, Gucci posted an apology expressing their regret on Twitter and took off the cardigan from their site.
Three months later, the company was again in the news after luxury e-tailer Nordstrom featured the Indy Full Turban as an accessory, which was initially seen on Gucci’s AW19 catwalk on white models and then listed on Nordstrom’s site for US $ 790 per piece. It was fitting for the brand to pay no attention to the mistreatment that people who wear Sikh turbans for religious beliefs face while wearing them as a fashion accessory, Gucci’s Indy turban was set to make huge profits in the face of that.
The Sikh coalition , “a community-based intuition and a think-tank that defends Sikh civil rights”, in particular, tweeted: “The turban is not just an accessory to monetize. It’s a religious article of faith that millions of Sikhs view as sacred. Many find this cultural appropriation inappropriate since those wearing the turban just for fashion will not appreciate its deep religious significance.” The item was subsequently pulled from its site, and they also apologized to the Sikh community. However, this seemed to be a travesty at best when you give thought to the fact that the Sikh turban collection came just few months after Gucci’s Blackface cardigan debacle.
Kim Kardashian West, Kimono
The prominent American media personality made headlines in June after a social media outcry over her choice to call her new shapewear business “Kimono,” which is also a traditional Japanese robe garment. the latter is Kim’s lingerie brand, KIMONO-a new line of shapewear and the deeper issue of fashion’s cultural appropriation. The brand website tells that Kimono is “a new, solution focused approach to shape enhancing underwear” and “fueled by her (Kim’s) passion to create truly considered and highly technical solutions for everybody”.
The name of the line is quite clever (some would say deliberately inventive) play on words with Kardashian’s first name, but a huge chaos has flared up online since the brand is named after the traditional Japanese garment, the honored ‘Kimono’. Following the launch of her product line, Kardashian was met with public outcry in both the United States and Japan, primarily on digital platforms, with people voicing their dissatisfaction and condescension with the fact that the so-called shapewear Kardashian shared in photo ads looks nothing like a real “kimono.”
The brand name, according to West, has two purposes: it’s a play on her name and it shows respect for Japanese culture. In reality, the term “kimono” refers to a traditional long, baggy clothing worn by Japanese ladies – it has been worn for generations. The Japanese communities in United states and Japan were outraged by Kardashian’s actions. Kardashian was criticized by the community of attempting to profit from a generations Japanese custom.
The controversy also lead to, the mayor of Kyoto, Daisaku Kadokawa, issue a statement pleading Kardashian to replace the trademark of Kimono for her shapewear line. In his letter, he wrote, “Kimono is a traditional ethnic dress fostered in our rich nature and history with our predecessors’ tireless endeavours and studies and the same should not be monopolized, he also went on to highlighted that the city is aiding in Japan’s initiatives to get “Kimono Culture” registered to UNESCO’s Intangible Cultural Heritage record because the rich culture and heritage behind the garment shouldn’t be monopolized.
The Trademark Test
Despite the fact that the original Trademark application was voluntarily amended to remove the terms ‘Kimonos’ and ‘Robes’ from the Goods and Services category for the word mark, a search of the USPTO website clearly shows the trademark application containing the two generic terms under the ‘KIMONO’ word mark.
A trademark must be unique enough to accomplish its dual identifying and differentiating purposes in order to be valid. Inherently distinctive, descriptive, and generic are the three types of trademark uniqueness recognised by trademark law.
In India, such a proposal would indeed be rejected under Section 9(1)(b) of the Trade Marks Act, 1999, (5) which states that “the mark consists exclusively of indication and/or characteristic of the good or services, particularly the word mark,” and that “the mark consists exclusively of indication and/or characteristic of the good or services.” ‘Kimono’ refers to a traditional Japanese clothing.
Attached below is the original request for express abandonment. Express abandonment is a patent application that can be expressly abandoned by way of filing a written declaration of abandonment identifying the application in the United States Patent and Trademark Office (PTO). Express abandonment comes into effect when an appropriate official of the PTO takes action thereon.(3) The trademark application has been abandoned since it is no more ongoing and so cannot mature into registration. A trademark examining attorney shall send an office action letter to the corresponding email account of record while the application is pending.
Traditional knowledge as an intellectual property
WIPO defines traditional knowledge as “the knowledge, know-how, skills, and practises that are developed, sustained, and passed on from generation to generation within a community, often forming part of its cultural and spiritual identity.” This is the nearest the legal community came to an accepted definition of “traditional knowledge.” (4)
Protection granted to traditional knowledge- Indian perspective
Traditional Knowledge Digital Library: The Traditional Knowledge Digital Library (‘TKDL’) was established in India in 2001 to assist the patent offices in several jurisdictions, including in India, to reject a patent application which could be appropriating traditional knowledge. (The Patents Act, 1970) (6)
International protection to traditional knowledge
a) Berne Convention for the Protection of Literary and Artistic Works
b) ILO Convention on Indigenous and Tribal Peoples, 1989
Would the use of traditional knowledge amount to cultural appropriation?
Traditional knowledge is not adequately protected under existing intellectual property systems, which are insufficiently extensive and capable. The lack of public access to a vast amount of traditional knowledge makes it simpler for industrialized countries to abuse right holders. Furthermore, the indigenous groups’ inability to effectively safeguard traditional knowledge is hampered by a lack of legal resources. One may claim that indigenous and local communities’ traditional wisdom does not provide them with any financial benefit, making the use of such ideas and beliefs by a third party for monetary gain ethical.
Obtaining approval from each member of the indigenous community in issue is an enormous and impossible undertaking, but simply recognizing the tribe as the source of inspiration may go a long way. As a result, the patent rights for turmeric and neem’s therapeutic qualities would be considered cultural appropriation. Biopiracy, or more accurately, cultural appropriation at the hands of industrialized countries, occurs on a worldwide scale.
The goal of trademark law is to prevent customer misunderstanding regarding the source of the goods or service indicated by the trademark, as well as to preserve the trademark owner’s goodwill in the mark. A trademark must be distinguishable enough to accomplish its two-fold identifying and differentiating duties to be valid. Attempts to appropriate cultural emblems through trademark registration have been made on many occasions.
In the 90s, India had to contest a persistent battle against some American businesses to protect the name ‘Basmati’ rice despite the critical claims to GI-tagging. An American company managed to register trademarks ‘Kasmati’ and ‘Texmati for “basmati type aromatic rice,” and it took the Indian government a lot of legal expenditure and cross-country effort to protect Basmati rice.
The remedies and alternatives available to the aggrieved community/group under Indian trademark law to preserve their history and cultural assets if a juggernaut does wind up trademarking some part of it.
ction By the Trademarks Office
As we all know, after you file an application to register a trademark, it is reviewed by an Examiner to determine if you may register a trademark for the topic of your application. If a trademark is deemed to be objectionable to a portion of the public at this point, it is subject to the Trademarks Act, 1999’s Absolute Grounds of Refusal.
ction by the Affected Community
Groups hold collective marks, which do not require any items to be linked with them. Members of the affected community might utilize the collective mark to be recognised and linked with the trademark solely in this circumstance.
If trademarks that appear to be objectionable to the community are permitted to be promoted following inspection, the aggrieved community has four months to file a lawsuit against the trademark.
If a culturally appropriating mark is incorrectly registered, the aggrieved community may petition the Registrar or the IPAB to correct the Register and revoke the infringing trademark.
Filing a suit
While the alternatives merely prevent the registration of the allegedly culturally exploitative mark, the trademark’s usage is not completely restricted. The best recourse for impacted groups that have a trademark/collective mark registration (as mentioned in point 1) is to file a trademark infringement lawsuit. The claim might be brought based on “likelihood of confusion/deception” and “trademark dilution.”
Term of copyright
Chapter V of the Indian Copyright Act, 1957 (7), lists the duration of copyright protection. Section 22 of the Act stipulates that copyright in published literary, dramatic, musical, and artistic works must last for sixty years from the beginning of the calendar year after the author’s death, if published during the writer’s lifespan. In this section, a reference to the author should be construed as a link to the author who expires later, in the event of a product of joint authorship. By the Amendment of 1992, this period was raised from fifty to sixty years.
The sixty-year term is calculated from the date of publication in situations when the work is a cinematograph film, sound recording, photograph, posthumous publications, or nameless organizations. By establishing some basic safeguards for writers’ rights over their creations, Copyright protects and encourages creativity. There is no necessity for a work to be registered to benefit from the act’s protection. Rather, it is an automatic right that arises when there is a violation. The Berne Convention stipulates that the copyright term must be at least sixty years. And on its line, the Indian Copyright Act, 1957, chapter (v) provides for the protection for sixty years. Even after the copyright period has expired, an author’s moral right as a right against distortion exists, if the terms of the act and the laws enacted therewith are followed.
Term of Copyright of work of an international organization
Copyright for a work created by an international organization that falls within the requirements of section 41 lasts for sixty years from the start of the calendar year succeeding the year in which the work is first published.
The trademark legislation appears to give a few measures to prevent cultural appropriation, but they come at a cost. Communities who are victims of cultural appropriation may not always be able to afford the expenses of trademark remedies. Every alternative listed above demands a significant amount of time and energy, which many people may find difficult to maintain. The intellectual property framework, whether in India or elsewhere, looks to be woefully inadequate in terms of establishing precise and suitable rules to preserve cultures and prevent cultural appropriation, and we still have a long way to go until this legal gap is addressed.
Although trademark laws may provide answers to the issue of cultural appropriation for source communities, experts have pointed out their limitations as useful legal instruments. For instance, a source community pursuing the cancellation of an appropriator’s trademark that utilises the community’s cultural output may find themselves back at square one if the appropriator obtains common law protection for her newly unregistered mark after a successful cancellation process. And if an appropriator loses common law security, the mark would be easily accessible for extensive third-party uses, which would undoubtedly be an even worse consequence for the source community.
Further roadblock for source communities wishing to have their cultural goods recognised as legitimate trademarks is the need that they be “used in commerce” and meet the “distinctiveness” criteria. If source communities fulfil these two criteria, there is one more source communities’ mark, they may find it difficult to establish dilution claims owing to the absence of countrywide recognition of the marks.
Copyright laws might be used to defend a source community against cultural appropriation. Cultural goods and expressions such as drawings, tales, and songs, on the other hand, are held collectively within a society and handed down from generation to generation, thus no single person can claim authorship of any specific piece.
For two reasons, this poses a hurdle for source communities seeking copyright protection. To begin, the date of the author’s death is required information for establishing the duration of protection under the 1976 Copyright Act. Second, while the Copyright Act protects anonymous work, the duration of such protection is determined by the year in which the work was published. It is hard to know how long a cultural output will be protected under the Copyright Act without an identifiable creator and a date of publication. Furthermore, even if intellectual property rights were originally granted to a cultural output, any period of protection would have expired owing to the passage of time. Cultural goods frequently fall into the public domain as a result of these factors.
Because copyright law has failed to provide legal protection to source communities, appropriators seeking copyright protection for works that include unprotected or unprotectable cultural items have been shielded. This may be seen in the history of the music industry in the United States, when white musicians, for example, appropriated and copyrighted songs created by black musicians. Fortunately, an appropriator’s violation of copyright law does not always result in a good outcome for the appropriator.
A source community may seek protection from copyright laws in order to combat cultural appropriation. Cultural goods and expressions such as drawings, tales, and songs, on the other hand, are held collectively within a society and passed down from generation to generation, thus no single person can claim authorship of any specific piece.
It is hard to know how long a cultural output will be protected under the Copyright Act without an identifiable creator and a date of publication. Furthermore, even if intellectual property rights were originally granted to a cultural output, any period of protection would have expired owing to the passage of time. Cultural goods frequently fall into the public domain because of these factors.
When someone tries to comprehend and learn about another culture in order to widen their horizons and make cross-cultural connections..
In one of the few examples of cultural respect, Sabyasachi Mukherjee and Christian Louboutin collaborated in 2017 to produce a limited-edition line of shoes and bags for men and women called “Candy Store.” Classic Christian Louboutin designs were reimagined and handmade in Sabyasachi’s line of beautiful silk materials adorned with zardozi. The shoes and bags were truly one-of-a-kind and custom-made.
Best Practices for Avoiding Cultural Appropriation
To avoid appropriation of culture, brands can still use cultural expressions with the help of the following practices:
• Understanding and respecting the holders of traditional cultural expressions;
• Respectful modification and reinterpretation of traditional cultural expressions;
• Acknowledgement and acknowledgment of traditional cultural expression holders; and
• Engagement with traditional cultural expression holders through requests for authorization and creative cooperation.
What emerges from a preliminary investigation is not simply a need for a static safeguarding of the given manifestations of folklore, but rather a necessity for collaboration in order to make folklore a method to boost local communities’ economies while preserving their identities and values. When looking for innovative ways to address cultural appropriation in the fashion industry, it’s crucial to remember that, in addition to legislative measures, private governance mechanisms, particularly Corporate Social Responsibility norms, may play a significant role. The phenomena of private actors pursuing public aims and interests while performing conventional state tasks such as rulemaking, implementation, and dispute resolution can be described as private government.
In the fashion business, compliance with CSR principles is quickly evolving, and nearly every major fashion company has a link to their corporate code of ethics or code of conduct. Many contemporary designers adhere to social norms in their design work, with others incorporating artisan skills into their designs through collaborations with traditional textile craftsmen. Collaboration between Western designers and local craftspeople should be promoted in order to build sensitivity and understanding among artists, designers, and consumers. Cultural awareness, education, and ethical business practices will instill values and inspire customers and businesses to make mindful decisions. (Christian Louboutin vs Sabyasachi)UNESCO has also created a Traditional Knowledge World Bank (TKWB) Web system platform, which is meant to disseminate and share Traditional Knowledge while paying homage to its roots. A particular “Creative Textile” project has been created as part of its operations, with the main goal of preserving, narrating, and sharing textile traditions and old methods in order to create a cross-pollination project among textile artists of all backgrounds and nationalities. The project’s goal is to chronicle and preserve old knowledge and customs. The initiative also aims to bring communities and regions recognised for their traditional textile skills together for a similar goal: to strengthen links between communities throughout the world.
Appropriation of culture is a complicated phenomenon. Lawyers who try to address the subject from a historical standpoint should strive to apply the appropriate techniques to deal with all the various elements that the phenomena present. When traditional intellectual property rights can provide a reasonable recompense for cultural appropriation, indigenous peoples should have access to them.
However, intellectual property is not always the best solution. Before imposing new laws that are oriented to defining property for profit over creative practices that are oriented to multiple social values and local livelihood goals, indigenous people’s needs must be understood and supported, taking into account their own perspective that may differ from that of Western lawyers.
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