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Popular singer Bruno Mars also found himself caught in the midst of a heated debate on the issue of “cultural appropriation” after an activist accused him of profiting from traditional black music when he is not black. His mother is Filipino and his father is Puerto Rican and Jewish.
Cultural appropriation has fast become a topic of some debate, so it may be helpful to start with defining the term. According to the Cambridge Dictionary, it is "the act of taking or using things from a culture that is not your own, especially without showing that you understand or respect this culture."
Activists against alleged cultural appropriation cite the following as potential harms of cultural appropriation:
(1) Where the source community’s culture is depicted in a manner which is offensive or disparaging;
(2) Where the source community is not compensated for commercial use of their cultural products.
A point to consider is whether the traditional areas of intellectual property may be employed as tools against cultural appropriation to prevent or mitigate the said harms. I hasten to clarify that I am personally not opposed to a free flow of cultural exchange, and am entirely okay with Bruno Mars singing any song he likes, but I am musing over this topic purely as a matter of academic interest.
Cultural appropriation proponents have often characterised copyright as a tool used by appropriators to reproduce unprotected or unprotectable cultural products.
Cultural products often fail to garner copyright protection because of the following factors:
(1) They are the result of cumulative knowledge and there is often no recognised individual author;
(2) There is usually no single user of the products because the use is shared in a community commons;
(3) Often the products are not sufficiently “reduced into tangible form” for copyright purposes, and can be shared through oral traditions or improvisations; or could be “ideas” rather than “expressions”, such as musical genres and rites or ceremonies;
(4) Often the products are extremely old or of indeterminate age, and any term of protection under copyright may have already lapsed. As a result, cultural products are often frequently cast as de facto public domain material.
There has been some unhappiness with how a significant library of black music is now owed by white businesses that had taken traditional black music and have protected their new expressions created by white musicians through copyright, thereby insulating themselves from any recourse from the source community.
There are arguments in social science literature that when an appropriator takes a source community’s product, and the appropriator is a dominant group in society whilst the source community is subordinate, the appropriator’s assumption of control over the meaning of the source community’s product is said to “entrench systems of dominance and control” that can be used to “colonise, subdue and destroy”.
In cases where the cultural products comply with the requirements of copyright laws and may properly be said to be protected thereunder, copyright remains a valuable asset for the source community.
An example would be a case in Australia where in 1993, the aboriginal artist Banduk Marika was involved in one of the most successful cases regarding indigenous copyright in Australia. It involved an Australian company that had reproduced woollen carpets with Ms Marika’s artwork printed thereon without her consent.
Despite arguments raised by the defendant that the said work was purely representative of Aboriginal “dream time” inspired art, and thus not “original”, the Federal Court ruled in favour of Ms Marika and awarded the largest award for an infringement of an Australian artist’s copyright.
Yet in the vast majority of cases involving cultural products, the requirements of copyright laws may prove to be insurmountable by owners of the same. Interested persons have then also turned to trademark laws to protect their claims of ownership.
For a trade mark to be registrable, it would, inter alia, need to be used in the course of trade, and must be distinctive in relation to the goods and/ or services that are traded under it.
For cultural products that are religious, historic or unrelated to any kind of commerce, they may not be eligible for trademark protection because they may fail to meet the “used in the course of trade” requirement. A source community’s cultural product may also fail to serve as a valid trademark because it fails the “distinctiveness” test.
In 2016, Urban Outfitters reached a settlement with the Navajo Nation – a native American community -
after illegally using the tribe’s name for a collection that included “Navajo hipster panties” and a “Navajo
print flask”. In a letter to Urban Outfitters CEO Glen Senk, when the company first launched the Navajo line, Sasha Houston Brown of the Santee Sioux Nation said the collection was distasteful and demeaning.
“There is nothing honorable or historically appreciative in selling items such as the Navajo Print Fabric Wrapped Flask, Peace Treaty Feather Necklace, Staring at Stars Skull Native Headdress T-shirt or the Navajo Hipster Panty,” she wrote. “These and the dozens of other tacky products you are currently selling referencing Native America make a mockery of our identity and unique cultures.”
The tribe registered the name Navajo as a trademark in 1943, according to court documents, but Urban Outfitters had argued that the term “NAVAJO” had become descriptive of the tribe and cannot be deemed distinctive. Despite the claims vigorously fought on both sides, Urban Outfitters settled.
There have also been successes in the use of the certification marks regime as well as the collective
marks regime. The Cowichan tribe in Vancouver, Canada, in 1995, filed an application with the Canadian Intellectual Property Office for “COWICHAN” over “clothing, namely sweaters, vests, ponchos, hats, toques, mittens, scarves, socks and slippers.”
According to the register, “The certification mark, to be used by persons authorised by the certifier, will certify that the wares have been hand-knit in one piece in accordance with traditional tribal methods by members of the Coast Salish Nation using raw, unprocessed, undyed, hand-spun wool made and prepared in accordance with traditional tribal methods.”
The main feature of a certification mark is that it serves as a badge of origin used not by the proprietor of the mark, but by his authorised users as a guarantee to the relevant public that goods or services possess a particular characteristic. The owner of a certification mark is responsible for regulating the standards which the goods or services that bear the mark must meet.
A collective mark is "a sign used, or intended to be used, in relation to goods or services dealt with or provided in the course of trade by members of an association to distinguish those goods or services from goods or services so dealt with or provided by persons who are not members of the association".
The main feature of a collective mark is that it serves as a badge of origin, to indicate that the goods or services originate from members of a particular association. In this way, it is similar to an “ordinary” trademark as they both function as badges of origin. A collective mark is typically used by companies alongside their own trademarks to indicate their membership in a certain association. The applicant/ proprietor of a collective mark must be an association.
The two forms of trademark registrations stated above may go some way in alleviating the fears of
cultural appropriation in that they may help to precisely circumscribe the person who may deal in certain cultural products.
Samuel Seow is the Managing Director of Samuel Seow Law Corporation and is also Foreign Legal Advisor to Seow & Associates. Mr Seow’s expertise is in the field of intellectual property law and general commercial and corporate law. He also has several years of experience dealing with a wide range of property related transactions, with special focus on the application of these laws to the entertainment,
arts and media industries. Mr Seow is a much recognised name in these industries. In 2010, he received
the Spirit of Enterprise Award, given out annually to a select few in recognition of entrepreneurial spirit
IP Issues in Uneasy Cultural Exchanges
Samuel Seow Law Corporation
Building walls against cultural exchanges seems to be prompting rage nowadays. Celebrity “meanie” chef, Gordon Ramsay, is catching a lot of heat on the internet for a clip that shows him being filleted for his skills in cooking by a Thai chef, when he attempted to make authentic Pad Thai for Buddhist monks. Sentiments on the internet include many voices calling for disrespectful white chefs to not try to spin their own takes on “sacred” Asian food.