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When is 'borrowing' from a traditional culture legitimate inspiration and when is it inappropriate exploitation?
Fashion houses accused of misappropriation and exoticism often claim to have just been inspired by, and paying homage to, indigenous cultures - which in such an interconnected world surely cannot be blamed! But these same fashion houses religiously prevent people from being 'inspired' by their 'iconic' prints through patents and trademarks. So how do we navigate this hypocrisy?
According to the definition provided by the Cultural Intellectual Property Rights Initiative, cultural misappropriation is when a member of a relatively dominant culture takes a traditional cultural expression and repurposes it in a different context, without authorisation, acknowledgement and/or compensation, in a way that causes harm to the traditional cultural expression holder(s).
INSPIRATION OR EXPLOITATION?
Lets start with fashion conglomerate Louis Vuitton. In 2011 Louis Vuitton's Kim Jones debuted an 'Africa-Inspired' collection, inspired, he says, by his childhood memories of time spent in Kenya. These checkered traditional Shukas belong to the semi-nomadic Masaai tribe of Kenya and Tanzania.
In the creation of his line, Kim Jones did not ask the Masaai tribe for consent of his use of shuka cloth, nor did he provide any form of compensation for profits made from its commercial use. Now here's why that's problematic. Whilst Louis Vuitton is a luxury fashion brand, nearly 80% of the Masaai population in Kenya live below the poverty line. If the Masaai check was trademarked, much like the Burberry check is, the Maasai Intellectual Property Initiative (MIPI) calculated that the Masaai people would be collecting $10m in licensing fees each year.
“The money is not going back into our communities; it’s going to people who have lots of money, who are our oppressors and colonizers.”
SAGE PAUL | ARTISTIC DIRECTOR OF INDIGENOUS FASHION ARTS (IFA)
But it's not just economic exploitation. It's the subversion of the meaning and significance of indigenous prints/patterns/textiles/techniques when they are removed from their original context.
The undeniable similarity of a traditional Canadian Inuit parka to KTZ's collection is a case in point. Controversy sparked after Salome Awa, great-granddaughter of the Inuit Shaman who designed the parka in 1922, discovered the piece whilst scrolling on FaceBook.
Shaman are held in the highest regard in Inuit culture for their ability to communicate with the spirit world for healing, power and information, with this parka only to be worn when it was needed for protection. So, with KTZ describing the parka as a 'Shaman towelling sweatshirt', Awa felt that her heritage and culture was disrespected.
"My great-grandfather...has been used and violated. It was disgusting to see a sacred design used as a sweater."
SALOME AWA
KTZ issued an apology, in it saying that it is part of their DNA to 'celebrate multiculturalism as a form of art'. But is this tone deaf? Whilst fashion houses see this as a celebration, indigenous people feel violated when they see their sacred designs used for purely aesthetic purposes.
For Awa the question remains: Why did you not ask us in the first place?
THE COLONISATION OF FASHION
Wait...aren't there legal repercussions for copying someone else's idea? Well, yes, there's intellectual property (IP) law, which protects creations of the human mind, including artistic works, designs, names and images used in commerce from being used without permission. So why arent these ideas protected?
To understand this let's travel back in time to the 16th
century. An era of colonial expansion. There existed the Doctrine of Discovery, a property law doctrine that delegitimised indigenous interaction with the land. The only measure of legitimacy became a registered title, a weapon weilded by imperial powers to claim that terrorities were 'uninhabited'. This allowed them to register their own 'legitimate' title to the land when they 'discovered' it, and become the legal owners.
I turn your attention now to the modern day, where indigenous nations are not able to utilise IP law because of requirements of originality, fixation and an identifiable owner. Oftentime, indigenous nations do not subscribe to Western notions of ownership, with designs being made by authors unknown, communal in nature and collectively owned. So designs are left unregistered, and as a consequence, unprotected. Big fashion houses are then able to step in, use, and in some cases, trademark these traditional cultural designs and patterns as their own.
See the parallels? Western conceptualisation of ownership, and what is protected by the law, is once again incompatible with indigenous beliefs and customs.
"They're not works of individual authorship, so they don't fit into copyright law. They certainly aren't patentable or trademark capable."
REBECCA TSOSIE | BOARD MEMBER, NATIVE AMERICAN RIGHTS FUND
Attempting to forcefully assert individual property rights can even create tension between indigenous groups themselves, as seen in the current dispute between artisans from Contla de Juan Cuamatzi and Saltillo over IP rights to the traditional Mexican sarape.
Clearly, there exists a dire need for a new approach to prevent the colonisation of fashion.
INNOVATION OF INTELLECTUAL PROPERTY LAW
This black hole in the law has not gone unnoticed. The World Intellectual Property Organisation (WIPO) of the UN has, since 1967, aimed to modify and develop existing IP law to specifically protect Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources as intangible assets.
Traditional Knowledge (TK) refers to skills of embroidery, weaving, needlework and beading, with Traditional Cultural Expressions (TCEs) referring to tangible outcomes of designs and textiles. According to WIPO, these are products of 'inter-generational and fluid social and communal creative processes' that 'reflect and identify a community's history, cultural and social identity, and values'.
So, we've established that WIPO recognises the legitimacy of indigenous claims, where are the corresponding laws?
Well, here's another reason to look forward to the New Year. January 2024 marks a significant milestone for indigenous communities, as it signals the establishment of a protective international legal instrument for TK and TCEs - a huge step forward in ensuring the protection and recognition of indigenous culture on a global scale.
A CALL FOR CULTURAL EMPATHY
Or perhaps the answer is not strictly legal, but rather a call to the cultural empathy of fashion houses.
Inspired by the UN's Nagoya Protocol, Monica Boța-Moisin, of the Cultural Intellectual Property Rights Initiative, has developed the 3Cs, a framework designed to eliminate culturally appropriative behaviour in the fashion industry and create a system that nurtures, sustains and protects TK and TCEs.
The framework is simple.
Firstly, there should be a discourse with the custodians of the TK or TCEs where there is a transparent disclosure of the intended purposes and consent is obtained. Secondly, credit must be given through source acknowledgement, storytelling or product labelling. And lastly, just compensation. This is not limited to direct financial compensation, but rather an equitable share of benefits arising from commercial use, with an investment into community well-being and developing sustainable growth projects being an equally valid form of compensation.
This benefit-sharing business model is a fair and sustainable one, one that ensures fashion houses do not cross the line of inspiration into exploitation.
DIOR X CHANAKYA
Christian Dior's collaboration with Chanakya International is a 'story of compassionate co-creation'. A story of 25 years of friendship, we look to the 2023 Dior show at the Gateway of India in Mumbai as an example of when it is done right.
The show is the perfect fusion of Dior's classic silhoettes and elaborate patterns with the vibrant colours, embroidery and prints of India. Here Dior has gone directly to the source, to the Chanakya Atelier, who possess crafting talents passed down from the master artisans (utsaads) tracing back to the 13th and 14th centuries. In doing this, the spiritual practice of riyaz is respected, a sacred discipline where teachers spend years teaching their craft to their student, also serving as an example of how traditional textile craftmanship is instrinsically slow-paced and socially sustainable.
"I always want to carry the fashion show, the creativity, to where the craft is."
MARIA GRAZA CHIURI | CREATIVE DIRECTOR, CHRISTIAN DIOR
Maria Graza Chiuri shows a deep engagement with the Indian community and understanding of traditional Indian embroidery techniques and textiles. She reportedly creates extremely dense mood boards for each collection, including archival elements, academic texts, imagery and cultural references. Clearly this is an equal partnership, one which Dior posits as a 'passionate dialogue to spotlight the excellence of Indian artisanship'.
"In India, embroidery is part of their identity."
MARIA GRAZA CHIURI
Referred to by Dior as 'poetry of the hand', the collection features Zardosi needle embroidery, Shisha mirror embroidery, couching stitch from the Lakna region and block printing techniques developed in the Indus Valley, just to name a few.
This is the sort of collaboration that fashion houses should aspire to. One of mutual respect, understanding and appreciation. They have the power to transform from the 'villain to the hero' through merging contemporary design thinking with traditional textile knowledge and techniques, and into global supply chains. In this way, the world can be introduced to the many beautiful indigenous cultures that exist in a culturally sustainable way, and achieve true multiculturalism.
"There is no sense of competition between us. It's about sharing a stimulus."
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