The Mexican government has lodged a “cultural appropriation” complaint against Carolina Herrera for its use of indigenous patterns and textiles in its Resort 2020 collection. Garments from the New York-based brand’s latest collection that “feature a traditional flower embroidery known as ‘istmo de Tehuantepec,” as well as those with “a colorful ‘Saltillo Sarape’ stripe pattern” have led the Mexican culture ministry and the fashion media, alike, to call foul. But legal experts suggest there is more to consider here.
Christopher Sprigman, for one, describes the large-scale “cultural appropriation” call-outs directed at Herrera and its creative director Wes Gordon as “over-simplified.” The New York University Law School professor, who specializes in intellectual property, states that the Carolina Herrera designs in question – which are part of a larger collection that Vogue recently called a “success … because it’s absolutely true to the brand’s roots, but quite youthful and fresh” – are “not the property of any person under traditional intellectual property law,” the body of law that consists of trademark, copyright, and patent.
Without individual ownership at play (intellectual property laws typically grant protection for inventions and original works created by named individuals and/or companies), these indigenous design elements are more appropriately categorized as “traditional designs that are historically associated with particular communities.” With that in mind, Sprigman asserts that if there is an appropriate avenue for calling foul on the brand in connection with its now-controversial resortwares, it most likely lies outside of the bounds of intellectual property, and more squarely with existing efforts to protect "traditional knowledge.”
It is within the broad category of traditional knowledge – one that the World Intellectual Property Organization (“WIPO”) describes as “a living body of knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity” – that “the designs and stitching motifs Herrera used” would more likely fall, per Sprigman.
More than that, it is worth noting that Mexican copyright law, while providing protections for literary or artistic works, works of popular art, and craft works against distortion, also states that “the use of those works shall be free, provided they are not deformed, intended to discredit the works, or prejudice the reputation or image of the community,” as Managing IP has previously reported.
The claims against Herrera come as legislative bodies, courts, and non-governmental organizations, such as the WIPO, have been examining issues related to – and legal frameworks that might be suitable for protecting – traditional knowledge, discussions that have spanned years and continents and that have spawned varied results.
“In some countries, courts have construed existing intellectual property laws to establish modest limitations on uses of traditional knowledge,” according to William Fisher, a professor of intellectual property at Harvard Law. For instance, “Australian courts have ruled that the importation and sale of carpets bearing images derived from motifs developed by Aboriginal groups violated Australian copyright law.” Other countries, he notes, such as Philippines and Guatemala, “have created sui generis regimes that [exclusively] govern traditional knowledge.”
Those in favor of protections for traditional knowledge – which could cover “everything from agriculture and food storage to construction, medicines, and the preservation of biological resources and the environment” and apparel and accessories designs, of course – argue that they would make it possible “to protect against misappropriation, and enable communities to control and benefit collectively from their commercial exploitation.”
More than that, creating internationally-recognized legal rights to protect such knowledge would serve to “prevent the erosion and unauthorized exploitation of traditions, stimulate innovation and creativity based upon the traditional knowledge, protect the knowledge from misuse and distortion, and protect the knowledge insofar as the dignity and moral rights of the traditional innovators are concerned,” according to the WIPO.
Sprigman, on the other hand, finds the notion of “cultures owning their characteristic creative expressions” – as tied to the protection of traditional knowledge – to potentially stand in the way of the progression of culture more broadly, which he says is achieved when “cultures inevitably interact, take from one another, learn from what they take, and define themselves both through contrast and assimilation.”
The Mexican government clearly disagrees. In a letter addressed to Ms. Herrera, herself, as well as Gordon, Mexican culture minister Alejandra Frausto has demanded that the brand “publicly explain on what basis it decided to make use of these cultural elements, whose origins are documented, and how this benefits the (Mexican) communities.”