An IP look at Fashion and Cultural Appropriation

At first glance many wouldn't align cultural appropriation and intellectual property. However, when cultural appropriation takes place within the fashion industry, an intriguing ground develops upon which IP law can take root. This post will provide you with a concise look at what cultural appropriation is, how it functions within high fashion, and three possible avenues for legal action to protect cultural rights in design.

As a term that's popping up with more and more frequency throughout the world, it is important to understand what exactly cultural appropriation is. It is most simply explained as the use or adaption of select aspects from a specific culture for use in a foreign area of consumption. This can appear in a multitude of economic and consumerist locals, most common however is the fashion industry.

From the beginning of time fashion has helped individualize and define society throughout the world. Thus, each nation, each people, and each social division have aspects of fashion and daily dress that help them identify with their heritage from Scandinavian to Pakistani, Street Style to Victorian. Because fashion is a large aspect of identity, it is also closely associated with beauty, and beauty that is exotic to our natural perception of fashion is highly coveted. When the fashion industry leans into this, pulling designs, prints, and other elements to integrate into modern and mainstream designs without acknowledging where the inspiration is from, the issue of appropriation develops.

It is important for high fashion to embrace, represent, and provide traditional options for customers across a variety of cultural and religious backgrounds, but the traditional inspiration and cultural usage must be acknowledged. Without such acknowledgment, the plagiarizing of traditional garb and design elevates to a concerning status, one that can be easily remedied with access and education.

Intellectual property is a potential avenue through which cultures can protect their rights to acknowledgement and perhaps exclusive use of such identifying designs. There are three avenues through which IP law can help develop a shield: copyright, trademark and geographical indication laws. Copyrighting certain patterns and marks can potentially help ensure local artistry is protected. Trademarking the mark helps protect against the plagiarism of such techniques as well. These two avenues are challenging however when the mark making and process is wide spread throughout a country or region. An example of this is the tradition of block printing fabric in India. Here, many craftsmen use the same marks and techniques throughout the region to develop fabric designs for traditional fashion.

The most feasible route for IP protection against appropriation is geographical indication. By registering a technique or pattern as a geographical indication, its use, reproduction, and consumer distribution is limited to the specific region that it is registered under. Any replications will instigate an infringement case, providing actionable legal protection for a regional product. Geographical indication could provide a collection of craftsmen with overarching protection for their work and livelihoods without fear of appropriation by major fashion companies. A very well known and respected example of geographical indication is Champagne. To be truly Champagne, a sparkling wine must be made in the Champagne region of France, using a very specific bottling and aging technique. While other wineries across the globe use similar techniques to produce a sparkling wine, they are unable to label their bottles as Champagne because the process and the product are geographically indicated to the special French craftsmen region.

While IP law is a fantastic avenue for cultural communities to utilize, it comes with a distinct challenge: access. Often, many communities that produce the fashionable designs that are commonly appropriated don’t have easy access to the legal resources to implement such protections. Registering copyrights, trademarks, and geographical indications can be a timely, complicated, and expensive process. This is a great pro-bono opportunity for major firms with an IP and international division, as it would help protect the livelihoods and cultures of individuals and underrepresented groups across the world.

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