Arak Journal

Is It Theft? Cultural Appropriation in the Fashion Industry

By Francie Huisinga

The fashion industry has struggled with the issue of copyright and intellectual property protection since the early twentieth century and is still trying to sort out, both legally and socially, this issue of protected ideas. Throughout this endeavor, vocal industry leaders have advocated for recognized protection from copying, stealing, or reusing without permission from the original artist. Few people in the industry have campaigned, however, to stop the rampant copying and stealing from marginalized cultures. Fashioning “art” with little regard for the people and heritage from which they take inspiration, designers too often create looks for the same Western audience responsible for the colonization and continued marginalization of the groups from which they regularly steal, sometimes under the guise of paying homage or without even explicitly acknowledging the culture’s existence. The longstanding tradition of hypocrisy in the fashion industry’s contradictory attitudes toward intellectual property theft and appropriation of cultural heritage contributes to continued racial, cultural, and social inequality.

Intellectual Property & Cultural Heritage

Intellectual property and cultural heritage share an inextricable connection, but particularly where the law is concerned, they stand opposed. Intellectual property law protects “the intangible aspects of creations of the human mind” (Scafidi 14). The key word here is human, singular. Susan Scafidi, who was the first professor to offer a course on fashion law in the United States, explains in her book Who Owns Culture? Appropriation and Authenticity in American Law that “the law has long conceived of creation as an individual phenomenon” (Scafidi 14). Western culture, and as a result Western law, is extremely individualistic. The so-called American dream often features a narrative of rising from rags to riches, but it’s a dream of individual triumph, not a collective one. It requires a person to work their way to the top on their own, often, even if unintentionally, at someone else’s expense. This individualistic social mindset is one separation between intellectual property and cultural heritage. Cultural artifacts are not seen as deserving of protection “because they lack an authorizing signature” (Pham 60). Both intellectual property and cultural heritage are intangible ideas and creations, but cultural heritage is only ever produced by a group.

The physical items produced by a culture are called cultural property. There is no internationally agreed upon definition of cultural property, but it is generally defined as tangible products of a culture and is often protected under governmental law. In other words, it is physical cultural heritage that includes important physical sites or specific works of art and related objects. As with regular physical property, damaging or stealing cultural property can have legal repercussions. Therefore, it would be illegal to steal a painting that was significant to a culture, but it generally would not be illegal to co-opt and reproduce the image itself. As an example of society’s flexible legal and moral relationship to intellectual property, Scafidi details the case of Napster and the division of public opinion over whether or not the illegal downloading of music constitutes theft, pointing out that society would not have been divided or confused in a case of someone stealing records from a record store (Scafidi 16). This division is further evidence of the seeing-is-believing materialistic attitude that courses through the United States. Clearly, disagreement exists on the issue of whether intellectual property should be protected under the law, yet few conversations have focused on whether cultures are worthy of similar protections.

To put this in further context, imagine someone breaking into a house and taking a television without permission. Few observers would argue that the person has not committed theft. Stealing of this type lacks complexity or gray areas because it is easy to recognize. Somebody went into a home that does not belong to them, physically picked up a possession that they did not own, and loaded it into a getaway vehicle. Maybe a neighbor even saw the thief carrying the television out in the middle of the night. There are witnesses. There is hard evidence. Intellectual property, however, is more subjective. It is harder to define and even more difficult to argue it has been stolen. A lawyer cannot show a jury a video of someone stealing an idea. She can only show secondary evidence, such as similarities between two products and the opportunity for theft. When it comes to cultural heritage, the lines blur even further. Produced by a group and unable to be seen or touched, cultural heritage checks none of the necessary boxes to be considered stolen property?an unfortunate reality given that it is the most important of the properties discussed here, and its theft has the most severe repercussions.

What’s Fashion Got to Do with It

The legal history of intellectual property in the fashion industry began in the early twentieth century when the industry’s powerful players in the United States started campaigning for the recognition of fashion as intellectual property and for the legal protections that such a label would guarantee. The first of these efforts was the Fashion Originators’ Guild of America (FOGA). Formed in 1932, FOGA accepted only high-end manufacturers and retailers as its members, called mass-market retailers unethical copycats, and lobbied the public and the courts to agree. FOGA ignored the fact that most of its member companies began by copying European designs and forced both members and nonmembers to obey its rules under financial threat. The lasting legacy of FOGA is the classification of copying as immoral (Pham 52). The fashion industry did not play by its own rules, however, as it continued to copy from marginalized cultures.

Since 1914, the fashion industry has introduced over eighty bills to the United States Congress in an effort to widen the scope of the Copyright Act to include fashion design (Pham 53), yet it has not attempted to minimize its appropriation of marginalized cultures. In her article “Feeling Appropriately: On Fashion Copyright Talk and Copynorms,” Minh-Ha Pham, who researches fashion labor and power dynamics in a global economy, illustrates the lack of concern for cultural appropriation through an examination of a copyright dispute between Feral Childe and Forever 21 that surrounded a t-shirt design featuring Native American teepees. In the media and arguments from both companies, she shows that something was missing. Pham points out that the “publicness of the teepee, the idea that it existed in the public domain, belonging to no one and so was freely available to be manipulated, refined, and transformed into fashion for the use and profit of the Western author, was a belief that literally went without saying” (Pham 64). There was a dispute as to whether Forever 21 had stolen the design from Feral Childe, but there was not even a consideration as to ownership of the teepee and its cultural significance for Native Americans. Feral Childe copyrighting its teepee design is an act “embedded in and coextensive with the national history of co-opting Native American cultural objects, imagery, knowledges, and practices” (Pham 65). This lack of acknowledgment of Native American culture shows that those in the fashion industry believe themselves to be above reproach and consider everything, including cultural representations they did not even try to appreciate, theirs for the taking.

Another similarity between cultural heritage and intellectual property is that cases involving both issues, in the United States and most other countries, are largely tried in the court of public opinion. Copyright and intellectual property law is hazy and often seem irrelevant, as most cases are settled outside of court (Pham 63). Peter Shand, an associate professor at the University of Auckland, New Zealand, states that Australia has “the richest case law regarding cross-cultural appropriation” (Shand 55). In Australia, “instances [of appropriation] that have occasioned litigation conspicuously have not involved the appropriation of Aboriginal Australian cultural heritage by non-Aboriginal artists for use in works of art” (Shand 55). Though appropriation for artistic purposes occurs frequently, the only cases that take legal paths are those that involve appropriation for commercial purposes (Shand 55). When it comes to fashion, whatever claims may be made about its use as a mode of artistic expression, it remains inescapably tied to commercialism and materialism. Every design, every piece of clothing, even the models, are products to be consumed by the public, and the fashion industry has wielded its power over those products irresponsibly for far too long. 

Look Who’s Talking

While the fashion industry has largely avoided regulating its effects on marginalized cultures, attempts have been made outside fashion to protect cultural productions. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) “is the peak organization engaged in shaping attitudes to, forming statements of principle about, and engaging with its Member States in projects to protect cultural heritage and cultural diversity” (Logan 35). In 1954, UNESCO hosted the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. As an international meeting in the wake of destruction to cultural property inflicted during the Second World War, the convention set guidelines for future protection of physical cultural heritage during wartime. The Hague Convention “recognized the importance of protecting cultural properties from irreversible damage” and “explicitly prohibits the use of cultural property for purposes which are likely to expose it to destruction or damage in the event of armed conflict and requires all [members] to refrain from any act of hostility directed against such property” (UNESCO). This convention makes no mention of protecting intangible cultural heritage. After the mass killing and persecution of Jews and other minority groups in an attempt to eradicate an entire culture and its people, the Hague Convention of 1954 sought to protect the landmarks that got caught in the crossfire. Tangible heritage does merit protection; however, it is shortsighted to discuss the importance of tangible heritage without consideration of the intangible heritage that produced it. If a landmark is destroyed, the culture for which it holds significance will continue, and the meaning of the site will still remain. But if the image of that landmark is co-opted by the fashion industry?and consequently distorted, commercialized, and depicted out of context on sweatshirts, in magazines, and on billboards?the widespread disrespect of the object and its significance could taint its meaning. 

UNESCO first expanded the scope of its effort to protect cultural heritage in 1982 at the World Conference on Cultural Policies in Mexico. Pulling directly from the declaration coming out of the conference, W.S. Logan details how the “earlier definition focusing on traditional ‘arts and literature’ was replaced by a new definition that saw culture ‘in its widest sense, [as] the whole complex of distinctive spiritual, material, intellectual, and emotional features that characterize a society and social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs’” (Logan 36). Other conventions furthered this movement in the 1990s, with the UN designating 1988?1997 as a “‘Decade for Cultural Development,’ with ‘cultural diversity’ as a key theme” (Logan 36). The 1998 Stockholm Intergovernmental Conference on Cultural Policies for Development “recommended that Member States should ‘promote the idea that cultural goods and services should be fully recognized and treated as being not like any other form of merchandise’” (Logan 36). These meetings included a lot of promising talk. Unfortunately, they possessed no real power over fashion or any industry and did not lead to any significant change.

Of course, while admitting the existence of the problem is undoubtedly an important step, merely the act of holding a convention does not entail a solution. It is necessary to recognize the value of intangible heritage; however, it is difficult to realize protections for it. The UN has been actively working to sustain and protect cultural diversity since the early 1980s, but the majority of the fashion industry?whether consciously or not?has been working against it for even longer. FOGA marked the start of official campaigns for intellectual property protections, but the fashion industry has lacked cultural respect and diversity since its inception. As anti-capitalist activist Tansy Hoskins states in Stitched Up: The Anti-Capitalist Book of Fashion, fashion “has historically been guarded as a domain reserved for one demographic: rich, thin and white” (Hoskins 129). The industry’s whiteness is seen in its models, its designers, its magazine editors?essentially in every area except the physical production of the clothes. The production process is outsourced to factories in impoverished regions of countries including Bangladesh and India, where major brands have been getting away with paying workers almost nothing in extremely unsafe conditions. The fashion industry ruthlessly dehumanizes and exploits its mostly non-white workers and then takes advantage of the poverty and inequality it has played a role in creating. Magazine editors and designers will publicly congratulate themselves when they picture a model of color, but few will actually attempt to fix the root of the problem (Hoskins 137).

Efforts to genuinely increase diversity, as opposed to token uses of non-white models, are met with forceful resistance from those inside the industry. Diversity in the fashion industry often comes with strings attached and thus is rarely genuine. Reflecting this issue, Yves Saint-Laurent had to threaten Vogue Paris in order to get Black English model Naomi Campbell photographed for its cover in 1988 (Hoskins 130). The fact that Vogue would only put a non-white model on its cover under threat of economic punishment shows the extent to which the fashion industry, which pretends to pride itself on innovation and survives on creating and playing into fresh and new trends, resists change, particularly when it comes to diversity. The fashion media continues to almost exclusively portray Western white standards of beauty. Monique Mulholland, a white non-Aboriginal Australian, examines the cases of two female Aboriginal Australian models, Samantha Harris and Magnolia Maymaru, and the media coverage of them. She points out that the overwhelming majority of the fashion media treats both models’ Aboriginal heritage as something they had to overcome in order to be just like everyone else, which perpetuates the view of Aboriginal communities as “primitive” and reinforces white superiority and colonial standards of beauty and femininity (Mulholland 210). More often than not, non-white models are used as “mere exotic landscapes” to set the background for white models, a “theme rich with the history of colonialism and exploitation” (Hoskins 132). The fashion media consistently implies “colonial constructions of the ‘West’ as inherently modern and ‘civilised,’ as the place in which ‘civilized practices’ such as fashion occur” (Mulholland 210). This view results from but also acts as a catalyst for the perpetuation of racism and inequality among cultures and belief systems.

A Socially Just Future for Fashion

Throughout this essay, I have spoken of cultural heritage in terms of property, of cultures producing objects and artworks, and referred to legal protections that do and do not apply to it as compared to other forms of property. However, it is important to note the potential problems with discussing appropriation, particularly relating to indigenous cultures, in these terms. Many indigenous tribes do not think of property and ownership in the same way as the European cultures that colonized their land. As Shand explains, forcing indigenous tribes to play into colonial ideologies in order to receive protection for their culture can act as an extension of colonization, but it may also be the only effective method for them to gain agency over protecting certain aspects of their culture (Shand 68). Most scholars agree that communities should decide for themselves which aspects of their culture should be protected and in what ways. However, no such process could be simple. The question arises of how to define the criteria to classify something as culturally important, and who defines it (Shand 76). As Scafidi explains, “[n]ot all cultural products have equal significance for their source communities, and not all (or even many) deserve protection as intellectual property. Not only would such protection create a tremendous administrative and economic burden, but the loss of socially beneficial cultural exchange would also be tremendous” (21). Thus, setting clear guidelines could prove difficult.

    The history and present state of the fashion industry show that it would be overly optimistic to think that designers and fashion magazine editors will thoughtfully consider the effects of their actions before putting a new t-shirt design on the market and learn that they could minimize these negative effects if diversity increased at all levels of the industry. The industry needs to realize that it cannot continue arguing for the legal protection of material designs while simultaneously taking a firm stance against cultural protections for entire groups of human beings. Its actions make it clear that the fashion industry cannot regulate itself. We are all witnesses to the theft of cultural heritage, but it does not affect all of us equally or directly. If the same man was seen stealing a television every single night, nobody would let him off the hook after he explained that his theft was actually art. The fashion industry is that man, and most of white America are the bystanders who, by either applauding the theft or simply not caring enough, have been complicit in his crime for centuries.

Works Cited

“Cultural Heritage in Armed Conflict: The 1954 Hague Convention and its two (1954 and 1999) Protocols.” YouTube, uploaded by UNESCO, November 14, 2017, www.youtube.com/watch?v=mqdgj1aPHqs.

Hoskins, Tansy. Stitched Up: The Anti-Capitalist Book of Fashion. Pluto Press, 2014.

Logan, W.S. “Closing Pandora’s Box: Human Rights Conundrums in Cultural Heritage Protection.” Cultural Heritage and Human Rights, edited by Helaine Silverman and D. Fairchild Ruggles, Springer, 2007, pp. 33-52. SpringerLink, doi: 10.1007/978-0-387-71313-7_2.

Mulholland, Monique. “Sexy and sovereign? Aboriginal models hit the ‘multicultural mainstream.’” Cultural Studies, vol. 33, no. 2, 2018, pp. 198-222. Taylor & Francis Group, doi: 10.1080/09502386.2018.1473457.

Pham, Minh-Ha T. “Feeling Appropriately: On Fashion Copyright Talk and Copynorms.” Social Text, vol. 34, no. 3, 2016, pp. 51-74. Duke University Press, doi: 10.1215/01642472-3607576.

Scafidi, Susan. Who Owns Culture?: Appropriation and Authenticity in American Law. Rutgers University Press, 2005. JSTOR, www.jstor.org/stable/j.ctt5hj7k9.

Shand, Peter. “Scenes from the Colonial Catwalk: Cultural Appropriation, Intellectual Property Rights, and Fashion.” Cultural Analysis, vol. 3, 2002, pp. 47-88. www.ocf.berkeley.edu/~culturalanalysis/volume3/pdf/shand.pdf.

Paper Prompt

ESSAY 2

For this
assignment, you are being asked to compose a 2500 word thesis-driven analytic
essay that explores a topic or question of your choosing related to our class
theme (ideally, the topic we discussed during your conference, which you?ve
already begun to research and explore in your Research Sketch). In this paper you
should aim to demonstrate proficiency in all the skills you have practiced this
semester, and I will be looking at your ability to choose a viable research
topic, engage with it in a meaningful way, close read texts, summarize other
scholars? critical arguments, and integrate other viewpoints into your own
larger, balanced and thoughtful argument.

Of course,
the rules of good academic writing still apply, which means you should have a
strong thesis statement that controls the argument and structure of your entire
paper. Your paragraphs should be coherent and lend support to your thesis,
integrating both your own original thoughts and the thoughts of others. All
quoted, paraphrased, or summarized material must be cited accurately in MLA
format, both within the paper and at the end in the form of a works cited page.

To prepare
for writing this paper, you will complete several prewriting activities,
including a conference with me, a library research session, the Research Sketch
assignment and two conferences with your Writing Fellow. Your essay will go
through two mandatory draft processes, but please feel free to write other
drafts as needed. This assignment requires the integration of a minimum of 5
secondary sources in support of your own argument, but you?re certainly welcome
to incorporate more sources as you see fit. While you may include carefully
evaluated reliable web sources, at least two of your sources should be a result
of library research.

Guidelines:

• Length: 2500 words (give or take 100
  words). Your paper must also include a separate works cited page.

• Formatting: Standard stuff
  here–double-spacing, one-inch margins and 12-point font.
• Style: Your final draft should
  reflect all of the MLA style guidelines we?ve discussed in class.

Due
Dates:

• 1st Draft: 10/25/2019 (750-1000 words)
• Bring 3 hard copies to class
• 2nd Draft: 11/4/2019 (1250-1750 words)
• Bring 3 hard copies to class
• Final Draft: 11/17/2019 (2500 words)
• Upload final draft to Canvas
• Late drafts (i.e. papers that
  are not submitted by the start of class on the day they?re due) will lose
  ? of a letter grade for each day they are late.