Curbing cultural appropriation in the fashion industry with intellectual property

Author:Brigitte Vézina
Position:Intellectual property and cultural heritage law consultant, The Hague, Netherlands

In the face of public uproar following countless accusations of cultural appropriation, the fashion industry is due to undergo a profound transformation. The world over, calls are being made for fashion designers to be mindful when borrowing from other cultures and to offer products that are respectful of their traditions. While the term “cultural appropriation” is shrouded in uncertainty, there is undoubtedly a role for intellectual property (IP) in curbing this harmful practice.

“Cultural appropriation” is a murky concept. It can be described as the act by a member of a relatively dominant culture of taking a traditional cultural expression and repurposing it in a different context, without authorization, acknowledgement and/or compensation, in a way that causes harm to the traditional cultural expression holder(s).

A culture of copying in fashion

Many instances of cultural appropriation can be explained, at least in part, by the fact that copying is so pervasive in the global fashion industry. While fashion design is marked by an astonishing level of creativity, imitation remains a major driver of the conceptualization process. Many commentators refer to this as the “piracy paradox,” in which fast-paced copying ensures renewed consumer demand for ever-changing designs. With new trends quickly trickling down from high-fashion to fast-fashion, designers tend to embrace a multicultural vision and resort to exploring an increasingly diverse range of cultural influences to come up with a stream of fresh and novel styles.

This is nothing new. Fashion designers have been borrowing stylistic elements from other cultures for centuries. Foreign influences on European fashion can be traced from the late Middle Ages. The development of trade with the Americas and Asia, notably via the Silk Road, brought refined fabrics and new-fangled clothing styles to wealthy merchants across the Old Continent. Fast forward to the early 1990s and designers are working up an appetite for all things traditional, ethnic or folkloric, incorporating patterns and motifs from Indigenous cultures into their creations. Today, the appeal of traditional designs is as strong as ever. The pages of fashion magazines are awash with clothing and accessories bearing a distinctively “ethnic” flair.

When drawing inspiration causes harm

Unfortunately, designers sometimes take traditional cultural expressions and reuse them out of context in ways that disregard or misinterpret their...

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