Cultural appropriation

October 21st, 2019

by Charlotte Waelde

What do Kim Kardashian and the Kimono; the Black Panther movie and Ghanaian kente designs; and Gordon Ramsay’s London restaurant,Lucky Cat,have in common?

The answer is that they have all provoked intense debate around cultural appropriation. Fashion, food, music, film, personal attire, sacred rituals among others have all been the subject of claim and counter claim around cultural appropriation.  But how is cultural appropriation distinguished from cultural reference (or quotation), cultural exchange, cultural borrowing or other acts that do not have the same connotations as cultural appropriation?

What is cultural appropriation? 

Oxford Dictionaries (OD) defines cultural appropriation as

‘the unacknowledged or inappropriate adoption of the customs, practices, ideas, etc. of one people or society by members of another and typically more dominant people or society.’

‘the unacknowledged … adoption’is reminiscent of plagiarism, the sin that mostly troubles academia where ideas are reproduced without acknowledgement.  This might suggest that Gordon Ramsay, who when talking about his restaurant makes reference to Asia and being inspired by Tokyo and the Far East, should not be accused of appropriation on the ground that he acknowledges where his inspiration came from.  But that is too easy as many others could claim the same. Kim Kardashian in relation to her use of ‘Kimono’ for instance.  ‘the … inappropriate adoption …’ seems equally as troublesome as  what is meant by ‘inappropriate’ goes to the heart of appropriation.  To one, something that is inappropriate and therefore appropriation in the context of this definition may be to another entirely appropriate.  There was significant division in the debate around Lucky Cat and whether the theme of the restaurant was appropriate or not.  There was more agreement among commentators that the use of Ghanaian kente designs in the Black Panther film was inappropriate, but less agreement on whether it was inappropriate because its use was unremunerated, or inappropriate because it was used without permission and attribution.

In terms of what is taken, the definition refers to ‘customs, practices, ideas, etc.’.  It would seem that ‘etc.’ is important as many of the high profile discussions on appropriation revolve around tangible objects rather than intangible customs, practices and ideas, although the objects encompass the tangible expression of the intangible customs and practices.  Kentedesign is a good example in this regard.  The fabric is the expression of the customs, skills and practices of the Asante and the Ewe ethnic groups in Ghana.

Other different types of appropriation would include blacking up for the Black and White Minstrel show, a British show that was shown on television for 20 years from 1958 and featured blacked up white singers, something that few today would consider anything but cultural appropriation. But blacking up per se may not be considered by everyone as cultural appropriation in other circumstances, and the matter is often much more complex.  Al Jolson, the Jewish singer, blacked up for the 1927 film, The Jazz Singer. His singing style has been described as a metaphor for Jewish and Black suffering throughout history. He has also been described as a shameful poster boy for blackface.   More recently, the appearance of NettaBarzilai(a Jewish woman) in a Japanese Kimono for the Eurovision song contest sparked debate as to whether her actions exemplified solidarity and empathy among subjugated people, or cultural appropriation. Even more challenging are the issues that surround the award winning film,Inexba, about a secret initiation ceremony in South Africa and which was made by a white director.

These examples also illustrate the next part of the OD definition, which is that the appropriation is mostly of ‘one people or society by members of another and typically more dominant people or society’.  High fashionproduces many examples where cultural appropriation is rife and often categorised as dominant organisations and individuals taking advantage of others.  Gucci putting their white models in £600 turbans; Nike using a design called MOLA on their trainers originating with the Guna people in Panama and parts of Colombia; Caroline Herrara’s use on clothing of embroidered animals, colours and flowers derived from the culture of the Tenango de Doria community in the state of Hidalgo, are just a few examples.

Why does it matter?

The answer to the question – why does it matter?–emerges from this discussion.  It matters because peoples – individuals and communities – feel wronged.  That wrong may take a number of different forms: a wrong from others benefitting financially from their heritage; a wrong from the unethical way in which culture is used in ways far removed from tradition; a wrong in not being attributed (or being misattributed) as the source of the tradition; a wrong in exposing sacred and secret cultural practices – to name but a few.

But a feeling of being wronged does not always have a legal remedy.

What (legal) remedies are available for those who consider that their culture has been appropriated

What action can those who feel wronged take?  Here there are challenges. The fact that there is no agreement on what cultural appropriation is, nor the rightness or wrongness of the practice,nor its parameters is reflected in the legal framework, or rather the lack of a legal framework and means of redress for individuals and communities who feel wronged.  When thinking about tangible expressions of culture – such as the motifs and designs used on clothes, the most obvious route would be to resort to intellectual property rights.  But these expressions of culture have been around for so long that they are no longer protected by traditional intellectual property rights.  Copyright for instance lasts for up to 70 years after the death of the author – many of these traditions and expressions are much older.  Further, intellectual property rights tend to focus on single authorship. Traditional works have many authors.  Many years have been spent at the World Intellectual Property Organisation trying to develop an international legal framework akin to intellectual property rights for the protection of traditional knowledge and cultural expressions which as yet has had no success.In this void, appeal is often made to human rights, such as the rights to culture and to property.  The challenge is that the human rights framework does not give to individuals, or communities, a right of action.  Obligations under the human rights framework are imposed on States, not individuals. Individuals and communities could make representation to their State about appropriation, but the State has a margin of appreciation as to how the rights are implemented into national law, or on what action to take in the event of their violation, so there is no guarantee that a State would take up grievances of the communities in what is likely to be a long and expensive process. Some States have sought to address these shortcomings by enacting domestic legislation protecting cultural expressions. Kenya for instance enacted the Protection of Traditional Knowledge and Cultural Expressions Act, 2016, and Ghana includes protection in its Copyright Act 2005. The challenge with these measures is that they only apply within the territory of that State unless there are bi or multi-lateral agreements in place making them applicable further afield.  So the Maasai for instance, would have no basis to take action in the US against Louis Vuitton in respect of their 2012 menswear collection modelled on the Maasai traditional dress.

Strategies that have been successful – and increasingly so – are those that don’t rely on the law, but revolve around information awareness and naming and shaming.  The use of social media campaigns to highlight examples of appropriation and which appeal to general ethical standards of fairness increasingly garner support. Kim Kardashian for instance has come under intense pressure with regard to her use of the word ‘Kimono’ in connection with her shapewearcollection.  Blogger Emi Ito said this:

Let us be mindful of how we interact with and are inspired by cultures that are not our own. Let us truly appreciate and not appropriate, by slowing down long enough to deeply consider the unique histories and the people who wear their cultural garments to communicate pride in their heritage; who wear their textured legacies wrapped around them to remember what may have been lost and what is their right to reclaim.

Kim Kardashian has now backed down from using ‘Kimono’. There are many other examples.

HIPAMS and cultural appropriation

The discussion is highly relevant for shaping our HIPAMS strategies for the Baul, Chau and Patachitra communities.  If we accept that taking legal action against cultural appropriation (if it occurs) is not practical route for the communities to take, the marketing and IP strategies should be less about enforcement, and more about identification and differentiation of the communities, individuals and their works rooted in their intangible cultural heritage. For instance, instead of taking action against a third party for not attributing the source of inspiration, in, for instance, a Chau mask, Patachitra painting or Baul song, the communities and individuals could use individual and collective trade marks (or GIs) and signatures, for positive identification of origin of the works (and individuals).  These strategies use intellectual property, not as a means for enforcing (non-existing) rights, but to build a reputation around the origin of the works and to enable the consumer to differentiate those works that originate from these communities from others that originate elsewhere.  Building this reputation becomes a feature of the marketing strategy. Marketing and intellectual property thus come together to support practical and workable strategies that value those intangible heritage attributes that are of central importance to the communities, but which cannot easily or practically be enforced through legal means.