The Line Between Honoring Cultural Heritage and Appropriating It: Where Copyright and Trademark Law Fall Short

It’s ironic that fashion designer Carolina Herrera, who is Venezuelan and a self-declared emissary for Latin heritage, has found herself in the midst of a controversy over cultural appropriation.  The controversy arose out of the use by Herrera’s new creative director, Wes Gordon, of two designs associated with Mexican indigenous peoples on dresses in the Herrera Resort 2020 collection. Mr. Gordon was apparently inspired to use the designs on a vacation to Mexico.  In fact, in the past fashion designers have often looked to other cultures for inspiration.  

In a June 10 letter to Herrera and Gordon, published in the newspaper El Pais, Alejandra Frausto, Mexico’s culture secretary, demanded that they “publicly explain on what basis it [the brand] decided to make use of these cultural elements, whose origins are documented, and how this benefits the (Mexican) communities.”  The letter further stated: “We feel obliged to draw attention to this and start a public conversation about an urgent matter that features on the United Nations 2020 agenda for sustainable development.”  Susan Harp, a senator from Oaxaca, the state where one of the designs originated, stated that the designs were created “without permission, respect, or economic retribution” for the indigenous communities that produced the pattern. 

Legally, it’s not simple because traditional intellectual property law is ill-equipped to provide a remedy. As we stated in our blog on problems in protecting Australian indigenous art from exploitation, “…western intellectual property law does not mesh with Indigenous traditions regarding authorship and ownership.” For example, our copyright laws do not recognize collective ownership by a community and, further “…the protection that western intellectual property laws provide is often too short in duration to effectively safeguard Indigenous art.”  (Id., citing Michael Blakeney, Protecting the Spiritual Beliefs of Indigenous Peoples—Australian Case Studies, 22 PAC. RIM L. & POL'Y J. 398-399 (2013).).  Trademark law doesn’t suffer from the same time limitations, but likewise is not a good fit – to qualify for trade dress protection, a pattern or design would need to have acquired “distinctiveness” or “secondary meaning” in the eyes of the public due to actual use. (See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 207 (2000)

Advocates for reform in Australia are pushing for legislation that would prohibit inappropriate uses of indigenous art.  In Mexico there has been a call for legislation that would address exploitation of indigenous art without fair compensation.  And a committee of WIPO (World Intellectual Property Organization) is examining issues and possible legal frameworks to protect “traditional knowledge.”

Stay tuned for future developments!