What is Fashion?

Cultural Appropriation in Fashion: Is Copyright the Answer? By Brigitte Vezina

Like the fan fiction session, I had not given much thought to copyright issues in the world of fashion.  This session was incredibly interesting and I learned a lot.  

Fashion designers draw inspiration from all corners of the world.  But when sourcing elements from traditional cultures and reusing them out of context can cause harm: this translates as cultural appropriation.

A balance is required between support for a dynamic fashion industry with respect for Indigenous rights and interests as harm can be caused by misrepresentation.

UN Declaration of the Rights of Indigenous Peoples

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions (TCE), as well as their intellectual property. 

TCE the tangible or intangible forms in which traditional cultures are expressed or embodied, passed down from past generations, linked to an Indigenous community, often the creation or author is unknown (i.e.: artifacts and artwork)

Cultural Appropriation - change of cultural context, power imbalance, and the absence of holder’s involvement.  Misuse, misappropriation and unlawful use are the terms used by WIPO

Not all forms of cultural borrowing, inspiration, influence or taking are undesirable.  Cultures are fluid and to restrain their free flow would be to negate their very essence.

What is the difference between permissible inspiration and harmful use?

Fashion push boundaries or cause controversy, but that does not give you license to cause harm.

TCE often receive patchy protection of traditional cultures under copyright law because of originality (past down from generation to generation, derivatives may be fine), ownership (who is the owner), fixation (oral traditions), authorship (who is the originator), duration, exceptions and limitations (protection of culture in perpetuity).

“First Peoples’ identity is intrinsically linked to their dress.  Beyond its main purpose of protection, it tells observers the age and status of the individual gives immediate information about the nation he or she belongs to, pays homage to the person’s remarkable achievements and highlights the intimate relationship that exists between people and nature” Wearing our Identity - The First Peoples Collection at the McCord Museum, 2013

Principles:

1. Understand and respect the culture - do your homework and understand what it means.  For example, are you using an item that culturally would only be for women, in men's fashion? 

2. Transformation, not replication

3. Acknowledgement, attribution

4. Engagement, request for authorization and collaboration

The concept/principles of moral law within copyright law could be interpreted for use these types of cases for protection over TCE.