When I talk about copyright and fashion outside of the United States, I often get questions about the dangers of cultural appropriation. Shouldn’t it be illegal for Western fashion designers to steal traditional designs from Native American tribes or to appropriate design features from traditional Ethiopian garb?
My research on fashion and intellectual property has focused on the benefits – both to consumers and to the fashion business – of the lack of ownership of designs. Fashion is actually one of several industries that treat their creative output as a commons – shared resources that can be freely reused, recreated and recombined.
This is often music to the ears of free culture activists, libertarians and lots of people in the digital media industries, who have seen first-hand how difficult (and often counter-productive) it is to enforce copyright protections on creative work that can be copied perfectly with one click.
But for people who are concerned about cultural imperialism, this “free culture” sounds like just another opportunity to take advantage of the little guy. And, of course, that does happen. There’s nothing to stop Karl Lagerfeld from knocking off a Tibetan Buddhist robe. But the key question is: would he want to do that? Would that design resonate for the Chanel customer? And would those customers think it’s appropriate to incorporate a design with those political, cultural and religious connotations into French haute couture?
Just because you can appropriate designs from other cultures doesn’t always mean it’s a good idea. Especially in the age of social media, fashion brands and retailers must think twice about the cultural sensitivity of their appropriations before they face a PR firestorm online.
One thing that proponents of cultural protectionism and strict ownership regimes often forget is that once you’re in a position to defend ownership of your own stuff, it also means that everyone else has that right as well. The result? Lots of legal obstacles for cultural exchange. It is more difficult than one might think to determine exactly where a particular clothing design or jewelry design originated. That is one reason that courts in the US have consistently determined that fashion designs should not have copyright protection.
But fashion designers have very powerful intellectual property protection in the form of trademark. And this is where some traditional cultures have played their cards well. It turns out that trying to sell something as a “Navajo” design (as Urban Outfitters recently did) without the permission of the Navajo nation is a big no-no. The federal Indian Arts and Craft Act allowed the tribe to register 10 trademarks covering clothing, footwear and textiles, and they have been aggressively protecting their mark. Trademark protection makes sense here because their brand already has tremendous equity, as a brand manager might put it. “Navajo” has a powerful meaning for people who are familiar with their history. Customers who are inclined to buy something that’s labeled “Navajo” would most likely assume that the tribe was associated with the product. Trademark protection allows customers to be confident in that assumption, while giving the tribe the right to exert control over their products and aesthetics. It’s a win-win situation, and copyright protection plays no part in it.
Like other art forms, fashion is a powerful conduit for cultural diplomacy, translating the aesthetics of one nation or culture to people in far-away places who wouldn’t necessarily have had the occasion to think about that other world. What’s unique about fashion as an aesthetic object is that it’s something you wear: it provides the opportunity for an extremely intimate connection with a foreign perspective and it gives people the opportunity to literally walk in the shoes of another culture. The fact that fashion design elements can be sampled quite freely makes it even more likely that cross-cultural communication can occur … at the very least, in the form of fashion trends.