Our prior insights about cultural heritage have dealt with irreparable losses and the limitations of using traditional intellectual property law to preserve intangible cultural assets. We have also focused on the controversies that arise when IP law and traditional values collide. For example, the 50th anniversary in July 2021 of the creation of the Australian Aboriginal flag passed amidst the ongoing failure of the Australian Congress to resolve the “Free the Flag” dispute between indigenous artists seeking to reproduce the flag design and the for-profit, non-indigenous clothing company that had been granted an exclusive license by the flag’s creator. One senator remarked:
I had hoped this would be sorted by the 50th anniversary of the Aboriginal flag but the copyright issues surrounding the reproduction of the Aboriginal flag remain. I’m deeply disappointed as chair of the Senate Select Committee on the Aboriginal Flag at the failure to resolve this, especially by the 50th anniversary.
It’s impossible to have watched the chaos in the Taliban takeover of Afghanistan without fearing the likely consequences for that nation’s tangible and intangible cultural assets, especially because so much progress in preservation has been made in recent years, all now in jeopardy.
The fashion industry has been the source of many disputes. In June, 2021 the Mexican cultural ministry sent letters demanding explanations from international companies Zara, Anthropologie and Patowl as to their appropriation of traditional indigenous designs without acknowledging their origin or compensating the communities. While the subjects of the controversies are designs, they are in fact so much more layered than the term connotes. As expressed by the Ministry, each “...reflects ancestral symbols related to the environment, history and worldview of the community.” As echoed by a Guatemalan group working to protect traditional Mayan designs:
In February 2021, the Oaxaca Artisans Institute charged that Zimmermann, a high profile Australian fashion design firm, had plagiarized designs from the Mazatec community. In October 2020 the Mexican Culture Minister protested the unauthorized use of an indigenous poncho design by Isabel Marant. Following a mea culpa from Marant, it’s unclear whether the Ministry will take further action.
One has to hope that this repeated calling out of international fashion houses, followed by social media outcries and apologies from the designers, will result in an increased awareness of the legal and moral consequences of misappropriation of cultural property. It’s doubtful that existing intellectual property regimes will provide meaningful or practical remedies.
Against this background of exploitation, it’s important to recognize bright spots. Among these is the Arts Law Centre of Australia. In their own words:
Arts Law is Australia’s independent national community legal centre for the arts, a not-for-profit company limited by guarantee. We provide free or low cost specialised legal advice, education and resources to Australian artists and arts organisations across all art forms, on a wide range of arts related legal and business matters. Arts Law’s Artists in the Black program delivers targeted services to Aboriginal and Torres Strait Islander artists nationally.
Among the excellent programs of the Centre are podcasts with practical advice to indigenous artists seeking to enter into agreements with commercial galleries or license works based on traditional designs. One recent podcast on licensing designs for clothing manufacture focused on the need to exercise strict quality control, a concept critical to assuring that designs passed down through the generations are not used in a way that would be disrespectful. In addition to podcasts, the Centre offers tools to customize legal agreements. The Centre’s Artists in the Black program helps indigenous artists execute wills to reflect their wishes as to their artworks after they die. The Centre also acts as an advocacy organization to promote artists’ rights.
There are similar, if less mature, efforts in Latin America, centered around the exploitation of indigenous designs. In Colombia a government program called Artesanias de Colombia provides legal assistance with the negotiation and documentation of agreements affecting the use of ethnic property. It is part of a larger Latin American initiative called Economia Naranja (“Orange Economy”), created by the Inter-American Development Bank, that uses IP laws to protect the use of creative products, including indigenous products. In Mexico Viernes Tradicional is working to promote ethical relationships between communities of weavers and outsiders who wish to collaborate with them. In Guatemala, the Asociación Feminina para el Desarrollo de Sacatepéquez (AFEDES), representing indigenous women weavers, has been working to trademark Mayan patterns.
They are not only seeking protection from private commercial exploitation but even from their own government’s unauthorized use of traditional designs to promote tourism.
Finally, as we have noted, the appointment of Rep. Deb Haaland as the U.S. Secretary of the Interior has brought hope to indigenous communities seeking to preserve their sacred lands and heritage. Symbolic of this effort, on July 29, 2021, Secretary Haaland was presented with a 25-foot totem pole, which had made a remarkable journey from Lummi, Washington (where it was carved by the House of Tears Carvers of the Lummi Nation) to the National Mall. The Red Road to DC Totem Pole Journey was intended to highlight the need for informed consent by indigenous communities prior to industrial extraction.
Beyond symbolism, the funds targeted to Native Americans for housing and supportive services in the American Rescue Plan Act should also have a positive impact on cultural preservation because “home” and the transfer of language, ceremonies and traditions from one generation to the next are inextricably linked. Groups such as Protect the Sacred, formed as an emergency response to COVID-19, are emphasizing the importance of storytelling and community building among the younger members of the Navajo tribe.
We will continue to follow these incipient efforts to protect indigenous cultural assets and work towards a more equitable commercial environment.