When IP Law and Cultural Appropriation Meet At a Crossroad…

Can a culture die? It’s debatable.

Can a culture be erased from the memories of the public and/or assimilated completely into a dominant culture? When we think of the loss of several Indian languages, the whitewashing of our favourite Disney heroes, the loss of cultural identities of indigenous people across the world and other similar instances, it seems quite plausible, doesn’t it? And this issue lies at the heart of the discourse surrounding cultural appropriation. Quite simply put, cultural appropriation is the use of a cultures’s symbol, artifact, ritual etc. from a different culture, often without giving adequate compensation to the source community for such usage and/or resulting in the perpetration of negative stereotypes. This term and its implications has, however, faced severe backlash from various critics. Most cases are said to amount to harmless acts of “cultural exchange” or “cultural borrowing“. It hence becomes crucial to differentiate between genuine cases of appropriation which require public attention and legal consideration and baseless allegations used to pull off publicity stunts.

Protection of Cultural Expressions and IP-Is there a Link?

The best way to protect such cultural facets would be to protect them as Traditional Cultural Expressions (“TCEs”), provided they fall within the scope of the term. In its documents prepared for its 39th Session to be conducted in March 2019, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of the WIPO has described TCEs as “tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested” (the exact definition can be found in their Draft Articles here). The Committee also provides two kinds of protection for TCEs:

(1) Positive Protection: This refer to the use of IP and non-IP approaches to “prevent others from gaining illegitimate access to traditional knowledge” and to build up self-made enterprises based on these expressions.

(2) Defensive Protection: This refers to a “set of strategies to ensure that third parties do not gain illegitimate or unfounded intellectual property rights ” over such expressions.

The problem with IP approaches to such cases are that IP laws is most countries do not recognise such situations. For instance, if we examine the legal situation in India, we find that our IP legal framework is ill-equipped to protect TCEs, as has been elaborately discussed by Sreyoshi in an earlier post on cultural appropriation.

For more clarity on legal intricacies involved in cases of cultural appropriation, the following two sections lay out recent instances where such allegations have cropped up.

The Itsy-Bitsy Kiini v. The Victoria’s Secret Bikini-Who’s the Real Copycat?

Remember the scene where the Narrator in the  film, Fight Club,  remarks that “everything’s a copy of a copy of a copy“? This adage seems to literally apply when it comes to this world-famous bi(kiini)! Fashion lovers and active Instagram users may be aware of the popular Victoria’s Secret Crochet Trim Teeny Triangle Bikini Top and the Crochet Trim Cheeky Bottom. Available in bright hues, composed of tiny, yet well-fitted dimensions and clothing and complete with a distinctive crochet-and-elastic finish, the bikini is certainly eye-catching and unique. These bikinis, however, have been labelled as rip-offs of the Kiini bikini. The Kiini is an equally famous brand of bikinis promoted by several celebrities and made famous on Instagram and other social media outlets. Ipek Irgit, the owner of Kiini, filed a suit against Victoria’s Secret in 2015. The suit was later put to rest via a confidential settlement in 2017. In 2018, Ms. Irgit sued Neiman Marcus and two other swimwear companies for unfair competition and for violating Kiini’s trade dress. The lawyer representing Marcus and the companies, Jason Forge, did a bit of digging and uncovered interesting tidbits about the making and evolution of the Kiini, all of which can be found in this engrossing New York Times article. The long and short of it is that the Kiini is apparently a knockoff too! Maria Ferrarini, an independent street artist hailing from Brazil, started weaving and selling these colourful crochet-and-elastic bikinis way back in 1994. Apparently, her bikinis “inspired” the famous Kiini (and other knockoffs too, it seems). After this information came out in the public, Ms. Irgit dropped the suit and Ms. Ferrarini was adequately compensated. Though it’s not clear if this handmade crochet-and-elastic design can be considered to be a traditional cultural expression, some commentators have termed this as a classic case of cultural appropriation. And that’s not the end of the story (or knockoffs) yet. According to this report, Liverpool-based, fashion e-tailer MissPap is selling bikinis which look highly similar to Kiinis. And at much cheaper rates, too!

Hakuna Matata…It means no worries for the rest of your days-Apparently not for Disney!

Often quoted by the lovable Timon-Pumba duo in the Lion King movie, this catchy Swahili phrase (which literally translates to “no trouble”) became almost as famous as the movie. This phrase is also reportedly used often in common parlance by Swahili speakers. In 1994, Disney applied for a trademark on this phrase and the same was granted in 2003. In 2018, tens of thousands netizens signed an online petition which decried the grant of this trademark as yet another act of cultural appropriation, colonialism and robbery and termed it as “an assault on the Swahili people and Africa as a whole“. It has also been revealed that a Kenyan band had used this term way back in 1982 in a famous musical composition. Although Disney’s trademark of the phrase is justified under trademark law,  it does lead to a number of ethical dilemmas about theft of ideas, language and culture.

I can go on and on about various other interesting cases which have arisen recently (for instance, this bikini has been alleged to promote fetishisation of Asian women and the photographer Charles Freger is being accused of cultural appropriation for his recent works). For the sake of brevity however, I’ll limit the scope of my discussion to these two examples. The conclusions which can be drawn from the above discussion are:

1. It is nearly impossible to define the concepts of TCEs and “cultural appropriation” accurately since they are highly subject to public opinion and scrutiny and cultural history and sentiments. Also, the very concept of cultural appropriation seems to suggest that various facets of cultures can be “owned” like a “cultural property” by the members of such culture. Protection of cultural property has been provided under Article 1 of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. The definition however makes no mention of TCEs or any similar term. Thus, building an IP law framework on the basis of such vague, amorphous notions of these terms would prove to be a daunting task.
2. There is a (very) fine line between inspiration/appreciation and appropriation. (In fact, there’s a thin line between inspiration and outright copying, as has been proved by several past instances!) Artists often defend themselves against allegations of appropriation using arguments of artistic freedom and cultural inspiration which gives them the leverage to adopt such expressions in their works. Some artists further argue that their works honour and promote these cultures by providing them wider exposure on larger platforms. However, it is undeniable that certain works blatantly try to pass off a cultural expression as a product of original thought, instead of a byproduct of a culture (as can be seen from the above-describes instances). Legal recourses in such cases seem to be quite limited.
3. Social media has often proven to be a useful platform to speak up against genuine cases of such appropriation. On several occasions, though, these platforms are also used to perpetuate victim complexes and ugly stereotypes about minority and dominant cultures alike.

Given the various conceptual and legal uncertainties underlying cases of cultural appropriation, more discourse is required on the same for a uniform and workable legal framework for protection of cultural expressions. As Prof. Basheer puts it in his article, the need of the hour is a finalised WIPO text “that would not only prevent the cross-border misappropriation of cultural expressions, but also permit indigenous communities to proactively leverage their intangible wealth“.

Image from here