Updated: May 6, 2020
Cases of cultural heritage being misappropriated by the fashion industry are no longer “surprising”.
Traditional Cultural Expressions (TCEs) encompass every form of expression in which tradition could take place: it is passed down over generations and centuries, and it embodies feelings and beliefs of heritage and social identity. Examples of TCEs include rituals, handcrafts, folk dances and textiles, to name but a few.
A major issue when it comes to TCEs is derivate works, which in turn are defined as works whose creative inspiration derives from previous works, whether the last works are protected or not.
In this context, derivative works are inspired by traditional garments and produced by well-known powerful companies. The issue at stake is not the derivative feature per se, but the fact that the origin of inspiration is not recognised and openly stated when the products are put on the market. Furthermore, the original communities are not compensated with a percentage of the income generated by the garments’ sale.
No one claiming respect for TCE is against innovation or inspiration: these are in fact the engine of intellectual properties. However, what we need to understand when getting inspiration from TCEs is that, in a fair and sustainable World, we should give credit, ask for consent, and return benefits to the original creators.
To help you better understand how this unlawful behaviour of cultural heritage misappropriations manifests, we will present and comment on the case of Isabel Marant and the Mexican community of Santa Maria Tlahuitoltepec.
Applying the same logic as in the case of patents or trademarks infringement, this is a form of intellectual theft, namely cultural intellectual theft.
Whilst currently treated like simple unethical behaviours, it is finally time to recognise misappropriations of TCEs as illegal practices. If infringements of patents, trademarks and industrial designs are seen as a threat to patrimonial assets and as such are generally condemned by the public opinion (aside from law), why should the infringement of TCEs be looked at with more acceptance?
In 2015, the designer Isabel Marant presented, in collection spring/summer 2015 “Étoile”, the blouse depicted in the following picture:
The designer explicitly affirmed that she was inspired by textiles originated from Santa Maria Tlahuitoltepec Mexican communities. The traditional garments, called huipiles, are shown in the picture below:
The evident similarity between the two designs brought the communities affected by the copying to claim credit and withdrawal of Marant’s design from runways and commerce. The French label for which the blouse was “created”, Antik Batik, joined the fight as it tried to claim ownership of the blouse, which was instead, as affirmatively declared by the designer, inspired by the communities’ work.
No benefits from the sale and advertisements of Marant’s blouse were shared with the Mexican communities, despite the fact that the original huipil is generally sold at $18 while the derivative version was sold at $365.
The dispute luckily ended in favor of the Mexican communities, since huipiles were officially recognised by the Congress of Oaxaca as cultural heritage.
However, neither UNESCO guidelines nor Oaxaca recognition are legally binding. Therefore, even if the recognition maintains its importance, it cannot be considered equivalent to intellectual property rights in terms of enforcement.
Under the pressure of negative public opinion and the recognition of cultural heritage features, the fashion company retracted the blouse from sale. Unfortunately, this was the only action taken and there was no form of covering damages or repayment for the Mexican community. Furthermore, these acts of appropriation are still not legally sanctioned.
We consider appropriate to touch on some points of this story, in the hope it will give some food for thought.
Starting from inspiration: when do we know a textile is not simply inspired by another one, but is instead a mere copy? The comparison between the two pictures above demonstrates there has been almost no creative effort in the French blouse, a mandatory prerequisite in copyright protection even if differently adapted in various jurisdictions.
In the above case, Isabel Marant publicly affirmed the derivative nature of her design: even so, what was the real intention of doing so?
After this assertion, the French blouse was publicised, sold, and put on the runway. It was fully exploited, and everything was done without any prior consent from, credit to, or benefits given to the Mexican community. Ultimately, the fashion industry, and the public at large as long as it sustains this behaviour from the fashion industry, is so used considering indigenous communities’ designs as free to be exploited by everyone, that even if a garment is officially presented as “inspired” by indigenous handmade textiles, it is still possible to treat it as fashion industry’s own design. So, what is the point of making this declaration? Is it a guilt free card? It seems that the avowal of inspiration from indigenous communities is becoming a boast, built upon history and traditional labour, a marketing strategy to attract consumers’ attention and will to spend.
So of course Antik Batik tried to claim copyright protection upon the derivative work. If the Mexican community wouldn't have reacted, they might have been successful. Except for a few national legislations that offer specific protection to TCEs, traditional garments are not able to fulfill copyright protection requirements, therefore they are not considered plausibly subject to intellectual property rights. In this context, when the only tools to protect indigenous arts are the recognition of cultural heritage status and the unfair commercial practices, a weapon to avoid copyright protection on third parties’ derivative works, is the reaction of consumers.
It is important to avoid traditional designs being appropriated by the fashion industry. This is particularly important as it has led to a plainly inequitable situation: the copied design is protected by the designer’s IP right (trademark, industrial design registration, or copyright) whilst the original design, belonging to a traditional community, is not protected through any intellectual property mechanism. Therefore, communities could potentially end up in the somewhat farcical situation of having to ask permission from holders of the IP rights, in order to use their own garments. This is where cultural IP rights become extremely relevant and can offer a solution to this unfairness.
We firmly believe that, in the case of Isabel Marant and the Mexican community of Santa Maria Tlahuitoltepec, and in many similar cases, the driving force for the good result has been the public’s judgment on the dispute and the risk of damage for the fashion company’s reputation.
Brand image is an asset to nurture, and in the era of internet and fast communication, a lack of respect towards human rights, tradition, and episodes of copying and theft could negatively affect the fashion industry.
It is time to rethink cultural fashion – the focus should be collaboration with artisans and traditional communities instead of exploiting their designs and decontextualising cultural symbolism.
Text by Silvia Anthea Pannella
Editing by Laura Hibberd & Monica Boța Moisin
*Laura Hibberd is a London based barrister focusing on criminal and civil matters.
 See “Cultural Fashion: Transform the Fashion Industry from Villain to Hero” by Monica Boța Moisin