The term “cultural appropriation” has gained popularity over the last few years and can still be found all over the Internet: when a celebrity wears a traditional outfit from a culture they do not belong to, when a person who isn’t Black wears braids, or even when a person who doesn’t speak Chinese gets a tattoo in traditional characters without knowing their meaning. Cultural Appropriation certainly seems like a recent development in an increasingly progressive society, but in reality, this phenomenon can be traced back further into history.
With the development of globalization, cultures influenced each other as travel and commercial activity, such as trade, increased. For example, it is believed that Arabic travelers introduced pasta to Italy (the legend of Marco Polo bringing pasta from China has been proven to be false by historians). However, today Pasta is recognized as a traditional Italian dish and staple of Italian culture.
Although during those times, the exchange and influence of cultures seemed like an inevitable occurrence. Today, Cultural appropriation has a much more specific definition and can be described as the use of cultural elements or traditions by a person who doesn’t belong to the culture in question, in a derogatory manner, and without giving credit where credit is due. It is emphasized by the fact that oftentimes, members of a socially more powerful group tend to appropriate the culture of socially vulnerable communities.
What Is Appreciation And What Is Appropriation?
Of course, denouncing cultural appropriation does not mean that a culture can only be enjoyed and experienced by people who belong to it. There lies the difference between appreciation and appropriation.
Cultural appreciation is participation in a culture with a desire to be taught and to learn respectfully and by accepting criticism from people who actually belong to this culture. Appropriation, on the other hand, can be defined as using a culture in a way that mocks it, trivializes it, or uses it out of its traditional context. There is often a close link between cultural appropriation and racism.
For example, the use of traditional Native American War Bonnets as Halloween “costumes” or using blackface to pass as a famous black basketball player for the same occasion is cultural appropriation, and in the second case, flat-out racism. This shows a disregard for the cultural importance and significance of War Bonnets and the heavy dehumanizing past of blackface. But visiting a country and wearing traditional outfits in the right context, eating native foods, and learning the language and customs with the intention to discover a different culture, can be qualified as cultural appreciation.
Appreciation can take many forms, such as tributes, when done correctly. Kirikou is a famous animated film retelling a traditional West-African tale and was created by French writer and director Michel Ocelot. Having spent his childhood in Guinea, he wanted to represent West-African culture. In an interview with the online media company Konbini, he explained that through the development of his project, he faced many obstacles and was held back by the film industry that wanted to present a stereotypical, caricatural depiction of African culture and its people. However, from the music, which was created by Senegalese artists, to the voices of the characters played by Senegalese actors (even the characters from the English version are voiced by Black South Africans), Ocelot stayed true to West-African culture despite this pressure.
Intellectual Property, a Western invention?
On a larger scale, the textile industry is a major culprit of cultural appropriation. These big companies steal from smaller artisans who hand-craft their products after this knowledge has been passed down from generation to generation.
Without giving credit, they make immense profit by either selling the designs at prices that do not reflect the value of the traditional product (giving in to fast-fashion), or in the case of high-fashion brands, by selling designs at outrageous prices, far above what they would cost where they are locally produced. These companies often defend themselves by claiming the creations aren’t patented and are therefore free to appropriate. However, how can you know to dispute this appropriation if you do not know you have the right to?
Similarly, when European colonizers set foot in what is now America and discovered the area was populated, they did not hesitate to reclaim the territory as their own (declaring it “Terra nullius”), under the pretense that the Indigenous people present there for generations had not laid claim to the land according to European colonizers’ law.
We regularly hear people declare that “Culture is meant to be shared!” as a defense for cultural appropriation. Well, if culture is meant to be shared, why not share the profits?
In 2021, an American designer copied the exact designs and shapes of traditional Portuguese fisherman clothing, sold originally in Portugal for 60€. Claiming these were “designer”, she sold them for more than 600€. Companies often claim they are paying homage to these cultures but do not consult with or give a percentage of the profit back to the members of these groups, rendering their so-called “homage” senseless.
The Legal Aspects Of Cultural Appropriation Through The Lens Of Intellectual Property Law
It is difficult to legally justify the retribution of cultural appropriation since Intellectual Property is a personal and individual right granted to the creator of the intellectual asset in question. This is problematic because culture is the result of years and years of customs and behaviors developed by a group of people. In this case, can a group of people be considered as having common property over their culture?
But in that case, who can give the right to use this “cultural property”? Who is competent to represent the entire culture? These represent some of the flaws and limitations of Intellectual Property Law in regard to the protection of culture as a whole.
Therefore, certain countries such as Mexico have implemented laws that aim to protect Indigenous art from appropriation, mainly from the textile industry. These Mexican federal laws were put in place in response to big companies like Zara and Louis Vuitton who have stolen traditional Indigenous designs and embroideries in order to resell them. This federal law implements various punishments such as fines and imprisonment, in order to discourage any appropriation.
The Ever-Growing Importance Of Intellectual Property Law
The relevance of cultural appropriation is especially prevalent today, as it pertains to the trend of “Restitution of Cultural Property” by a small number of countries’ museums, who are progressively giving stolen and pillaged artifacts back to their original homes. In 2018, French president Emmanuel Macron notably commissioned the “Report on the restitution of African cultural heritage” which aims to verify the method of acquisition of artifacts currently in the possession of government-owned institutions.
The emergence of Intellectual Property and Technology Law has grown in the last 20 years, with the evolution of technology in our progressively digitalized society. IP Law will surely adapt in the future and is sure to allow the improved regulation of these social and legal issues.