Cultural Inspiration or Cultural Appropriation: a thin line that needn’t be crossed

The act of taking or using things from a culture that is not your own, especially without demonstrating that you understand or appreciate that culture, is known as cultural appropriation. Cultural appropriation has received a lot of attention in the last few decades. Simply described, cultural appropriation is the use of a culture’s symbol, artefact, ritual, or other elements from another culture, typically without sufficient compensation to the originating community and/or resulting in the perpetuation of unfavourable stereotypes. However, several critics have expressed strong opposition to this phrase and its ramifications. Most of the incidents are regarded to be innocuous “cultural inspirations” or “cultural borrowing.” 

The urge for the protection of Traditional Cultural Expressions (‘TCEs’) has become stronger in the wake of incidents such as swimsuits featuring Goddess Lakshmi, Louis Vuitton making Basotho design blankets among others. TCEs are defined by the WIPO as “productions including distinctive components of traditional artistic heritage developed and maintained by a community or by people reflecting such a group’s traditional artistic expectations.” They document the history, cultural and social identity, and values of a community. TCE is a broad phrase that encompasses art, music, designs, performances, signs & symbols, legends, names, and tales. While certain TCEs have been attempted to be protected by existing IP regimes, because TCEs are essentially different from other kinds of IP, depending primarily on this method results in a nonconformist issue. In this blog we have attempted to discuss some of the popular controversies relating to cultural expression to elaborate upon how conventional IP Regime is not sufficient for the protection of TCEs. 

People Tree v. Christian Dior 

The Picture is taken from the Instagram handle of the owner of People Tree: In left is the dress created by ‘People Tree’ and in right is the plagiarized dress of Dior’s cruise 2018 collection. 

Christian Dior, a high-end fashion house, plagiarised designs from a modest Indian art group and store called ‘People Tree.’ A dress from Dior’s Cruise 2018 collection included precise replicas of Block Printing designs developed and marketed by ‘People Tree’ in India. This came into the notice of the People Tree when the cover of Elle India in January, 2019 featured Bollywood actress Sonam Kapoor wearing the plagiarised outfit. It may be argued that the block printing on the dress by the People Tree group could be protected under the realms of Copyright Law. The Copyright Law gives exclusive rights in a specific work to a particular/specific copyright owner. It would be difficult to identify a single “owner” of these works using traditional Hand Block Printing processes. Another concern would be the duration of copyright protection because determining the source of the work – both in terms of time and authorship – would be nearly impossible. The provision for “anonymous works” only partially answers the problem because it allows for determining the duration of copyright from the date of “publication” of the work, which would be hard to identify in this scenario. Christian Dior and People Tree were able to settle their issue outside of court.

The Disney ‘Hakuna Matata’ Controversy: 

‘Hakuna Matata’ an appealing Swahili phrase which literally translates to no ‘no troubles’- became popular from the movie Lion King. Swahili speakers are said to use this phrase frequently in everyday conversation. Disney filed a trademark application for this term in 1994, and it was registered in 2003. In 2018, internet users joined an online petition condemning the trademark’s registration as “an assault on the Swahili people and Africa as a whole,” calling it “yet another act of cultural appropriation, colonialism, and robbery.” It was also found that this term was first used in 1982 by a Kenyan band in a well-known musical composition. Although Disney’s trademark of the phrase is legal, it raises several ethical concerns regarding intellectual property theft, language, and culture.

To make matters worse, this isn’t the first time Disney has been accused of such cultural misappropriation. It attempted to trademark “Día de los Muertos,” the name of a Mexican festival honouring the dead, a few years ago. This was in reference to “Coco,” a Disney movie set during the Mexican holiday. However, in this case Disney backed down and dropped its trademark registration in the face of considerable opposition. 

Incompatibility of present IP Regime to protect Cultural Expressions

The prerequisites for IP protection that Conventional IP regime stipulates, such as fixation (copyright), disclosure and inventive step (patent), and graphical representation (trademark), among others. These present bottlenecks that cannot be removed easily with TCEs, which include tangible and intangible elements that are preserved through experience and passed down orally through generations. In contrast, the IP system’s sole aim is to promote information transmission and innovation, which is at odds with many TCEs that are revered or kept hidden by communities.

Another significant flaw in traditional IP systems is their emphasis on the creator. TCEs are incompatible with this criterion because they are not created by a single person, but rather developed through generations via collective work and experience. 

Finally, most IP regimes grant rights that are limited in duration and expected to expire after a defined period. This is inconsistent with many TCEs since they build over generations and are useful to communities for as long as they exist. 

Conclusion and Suggestion 

The distinction between inspiration/appreciation and appropriation is very thin. Artists frequently use arguments of artistic freedom and cultural inspiration to defend themselves against accusations of appropriation. This gives them the power to incorporate such manifestations into their work. Some artists also claim that by giving these cultures more exposure on larger platforms, their work honours and promotes them. Certain works, on the other hand, are undeniably attempting to pass off a cultural expression as a product of original ideas rather than a by-product of a culture.

The 3 C’s Rule, which stands for Consent, Credit, and Compensation, is proposed by the Cultural Intellectual Property Rights. It believes in a more benefit-sharing business model which seems appropriate against misappropriation. The 3 C’s concept can be applied in any jurisdiction, providing a potential relief to the absence of a universally acknowledged mechanism for protecting TCE’s. However, many of these communities are typically unaware of their rights. This makes it quite difficult to hold the appropriators accountable in such a situation.