Why People and communities such as the Maasai in Kenya and Tanzania should fight against cultural appropriation of their traditional knowledge by luxury fashion labels
Essay 2018 5 Seiten
People and communities such as the Maasai in Kenya and Tanzania should fight against cultural appropriation of their traditional knowledge by luxury fashion labels.
Cultural appropriation is defined as taking intellectual property, traditional knowledge, cultural expressions or artefacts from someone else’s culture without permission. This also includes the unauthorised use of another’s culture’s dance, dress, music, language, folklore, cuisine, traditional medicine, religious symbols and the likes.
Any process of borrowing necessarily involves acts of appropriation, which are means by which borrowing occurs.
The first problem lies in the fact that developing countries like Kenya have not sufficiently defined their cultural industries within the Intellectual Property context. It is only recently that cultural industries have started realizing the full economic benefits that would be open to them, should they be granted adequate Intellectual Property protection and promotion.
It has been estimated that more than 1,000 companies including Louis Vuitton, Ralph Lauren and other major companies have used and exploited the Maasai imagery to project their brand. Having had their culture, images, way of life and even dressing projected for decades, the community finally decided to hit back. The Maasai Intellectual Property Initiative Trust was formed and Light Years IP light, a Washington, DC based non-profit organisation that pioneers public interest Intellectual Property came about to ensure that multinational companies recognize and pay for the intellectual property rights. The organization stated that these companies have sold billions of dollars of goods that make us of the Maasai’s Intellectual Property. Meanwhile, ‘nearly 80 percent of the Maasai in Kenya and Tanzania are living below the poverty line.’
It has been noted that international Intellectual Property laws have been ineffective at preventing cultural appropriation, and in fact, have been a tool for facilitating the same. Traditional cultural expressions do not easily fit within the current Intellectual Property framework because either the knowledge is not novel in the patent law sense or the cultural works may not meet the requirements for originality under copyright law. For example, some communities have had their brands and cultural works appropriated for years by different firms without taking any action, and therefore does not meet the originality requirements under Intellectual Property laws.
Furthermore, due to globalization, there has been opening up of countries and markets and increased visibility of and demand for the Maasai clothing, beads, sculptures and all forms of cultural expressions. Therefore appropriation is also caused by relative weakness of Kenya, Tanzania and other similar countries in a weaker position in the global market.
The TRIPS agreement as part of the Uruguay Round in 1994 added new dimensions to the debate on Intellectual Property rights in traditional knowledge and the TRIPS Agreement sets minimum standards for countries to follow in protecting intellectual property. Its objective is stated in the preamble as “to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.” Countries that ratify the Agreement are expected to establish comprehensive intellectual property protection systems covering patents, copyright, geographical indications, industrial designs, trademarks, and trade secrets.
UNESCO Universal Declaration on Cultural Diversity, 2005 has been ratified by over 100 countries as well as been acceded to by the European Union. Its guiding principles are inter alia, the principle of equal dignity of and respect for all cultures. Article 5 of the same text also provides that the Parties have a right to adopt measures to protect and promote the diversity of cultural expressions as well as to protect and promote the diversity of cultural expressions within their respective territories.
In accordance with the Declaration above, Article 11(1) of the Kenyan Constitution provides that culture is recognised as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. Consequently, a statute, The Protection of Traditional Knowledge and Cultural Expression, was enacted and signed into law in September 2016. Under the Act, cultural expressions include tangible expressions such as prints, photographs, textiles, costumes and the likes. The Act defines exploitation as employment of the greatest possible advantage of traditional knowledge and cultural expressions for selfish purposes, taking advantage of unwary traditional knowledge and cultural expressions holders and advertising or a publicity program. From this definition, it can be rightly said that the aforementioned big brands are definitely exploiting the Maasai culture for their own personal gain.
Other countries like the USA have the 1990 federal Indian Arts and Crafts Act to protect the traditional and cultural works of the Native Americans from exploitation. The statute has criminalized the sale or display for sell any art or craft belonging to an Indian Tribe in a manner that falsely suggests that it is Indian produced.
What kind of breaches exist in the context of cultural appropriation?
Cultural appropriation in this context involves a breach of both cultural and intellectual property rights. Intellectual Property reinforces cultural heritage and Intellectual Property protection is a means of promoting, enriching and disseminating cultural heritage. As seen above, there are Conventions and even national laws protecting cultural expressions in their many different forms.
There is breach of copyright, when someone takes a picture of Maasai in their regalia to use in the promotion of their goods. For example, Land Rover used a Maasai’s image without permission to promote their vehicles and tyres.
There is breach of design when the exact material design patterns are used in runway modelling shows by Louis Vuitton and other prominent designers’ shows; and the community gets no benefit or recognition for the same.
Do the Maasai and other similar tribes and communities have a valid claim?
In a similar case of Navajo Nation v Urban Outfitters (2012) in the USA, the Navajo Tribe, and a Native American tribe sued Urban Outfitters for breach and dilution of trademark and tarnishing of the brand before a federal judge in New Mexico. The Navajo Nation was seeking millions in dollars in its lawsuit over the retailer’s use of the name in connection with clothing, jewellery, flasks and other merchandise. The Navajo Nation had continuously used their trademark internationally since the 17th century and was a registered trademark since 1943. Their products include clothing, crafts, accessories, blankets and the likes. They argued that the ‘Navajo’ trademark is well known across the USA as a brand of authentic Indian-made goods and by the defendants use of the patterns in the clothing, there had been a breach. The plaintiffs relied on the federal Indian Arts and Crafts Act which prohibits the offer, sale or display for sale goods in a manner that falsely suggests it is Indian produced, an Indian product, or the products of a particular Indian tribe or Indian arts and crafts organization. The parties settled the case, with the plaintiffs receiving an undisclosed amount.
The Navajo Nation is a good model to follow as it took steps decades ago to protect its trademark. Registering the trademark has been helpful for them in protecting and asserting the rights and also in prioritization of protection of identity and intellectual property by pursuing such registrations.
The tribe has to date registered more than 80 trademarks with the US Patent and Trademark Office. Other tribes across the world should follow suit. The Maasai, for example, should register their trademark and design across the world. Tedious it may be, but it will definitely protect their indigenous, traditional and Intellectual Property rights.
The Maasai and other tribes therefore have a valid claim against the offending companies.
The tribes should start by sending a ‘cease and desist’ to all the companies that are still exploiting their intellectual property rights.
Benefit Sharing Deal: Light Years IP launched a Maasai Intellectual Property Initiative to among other things help the community regain control over their cultural brand by and to generate income from the brand in a way that is acceptable to them. This has also been done by Navajo Nation (discussed above) whereby the parties also signed a supply and license agreement and the parties also planned to collaborate on authentic American Indian jewellery line in future years.
It is said that the Maasai will already be on a sticky wicket with the law due to the fact that a number of companies have already got trademarks for the use of the Maasai name or image. The solution here would be to register their trademark and other Intellectual Property rights, far and wide so as to enable recognition of the proprietary prints and trademark rights in the same way as companies pay to use Navajo Nation’s prints or Burberry’s chequered prints. For example, in 2017 a beauty giant by the name of Coty paid 225 million dollars to Burberry for the global licence and right to use its name and chequered print, both of which are protected by trademark law, on a beauty and fragrance collection.
 (Malik, 2017).
 (Arewa, 2012).
 (Want to Use the Maasai Name or Print? You have to Pay, 2018).
 (OseiTutu, 2016).
 (Article 2(4) UNESCO Universal Declaration on Cultural Diversity, 2005.
 (Green, 2018).
 (Shyllon, 2015).