In 2013, when Lady Gaga released her album, clad in a burqa, she was called out for sexualising Muslim women.  Katy Perry’s geisha styled VMA performance angered sections of the public for stereotyping the Japanese and using exaggerated Asian features as props. These are not isolated incidents, but occur far too frequently to be ignored and brushed off as mere cultural inspiration or appreciation. The list is endless, from Coldplay with the depiction of India, to Miley Cyrus and Kylie Jenner with African Americans. Mainstream pop-culture is rife with stars appropriating pieces of another culture, isolating them from their contexts, and publicly fetishizing them, in order to profiteer from them.

Outcry against such depictions has been, and continues to be met with comments disregarding it as ‘extra-sensitivity,’ or a gambit of a dangerous ‘call out culture’, that impedes artistic expression and avenues for cultural engagement. However, an evaluation of the defenses of cultural appropriation in context of the existing power asymmetry between races, brings us to conclude that they fail.

The representation defense

The primary defense raised is that such allusions to minority cultures in music videos and clothing, enhance their representation in media, by drawing appreciation towards them. However, the ‘representation defense,’ fails on two grounds. Firstly, on its faulty premise, and secondly, on the basis of its effects.

It assumes that the representation of minority cultures could and can only be achieved through the White agents that uplift it. They seem to have it both ways; the very white agents that create access barriers, then seek to exploit minority cultural heritage under the garb of representation. In the 1950’s, the white radio stations that declined to play Chuck Berry’s music since it was ‘too racial’ in nature, subsequently chose to popularize the same genre of rock when brought to them by a white man, Elvis Presley. Elvis was perceived as a better and balanced carrier for what was characterized as, ‘black music’. The institutions that regulate and create the media have been, and continue to be racist, and ‘representation’ that occurs through a white lens, denies access to more authentic versions of what the culture stands for.

Secondly, the defense fails to prove positive effects; that such white representations of minorities, have created a gateway for minorities to enter and occupy space in mainstream media. While dreadlocks on Gigi Hadid are associated with beauty, the historical concomitant of such features with incivility remains a reality, and access to influential positions for minorities continues to be a struggle. The effect, is hence not representation, but an appreciation of “Black” elements only when subdued by its white carrier.

Reverse appropriation?

Another argument often advanced, is that since minorities often adopt White cultural attributes, the reverse should be deemed legitimate. However, the ‘reverse-appropriation defense’, too, ignores the historical context of power asymmetry. While Whites have been at liberty to choose to wear or depict the components of a minority culture at any point in time, minorities on the other hand, have been forced through a system of cultural imperialism, repression and forced assimilation to adopt white culture, to look civilised and humane. Instances of a black woman having to straighten her hair, according to white beauty standards, before a job interview, or an Asian trying to mould his accent when interacting with the police, are not free-will, but choices, forced upon them by the circumstances to fight historically accent internalised beliefs. It is the non-acceptance of a race or a culture in its raw form that puts on its members, the burden to neutralize it, in order to extract equal treatment.

Artistic inspiration

The third and fourth defenses raised are interlinked. It is argued that artistic license allows for artists to be inspired by their multicultural surroundings, and reflect the same in their work.

Inspiration fails to be an acceptable defense when the cultural symbols are treated as props in their actual usage. Belly dancing has been stripped off its context of being a liberating avenue of celebrating sexuality and sisterhood for Middle-Eastern women, and consumed by white women without having to experience the burdens associated with it. Hip-hop culture was originally an avenue to express the suffering and struggle faced by the Black community, black hairstyles were associated with an identity which was negatively regarded as “ghetto”, and the bindi and henna were marks of entering married life for Indian women.

When such symbols are appropriated in the name of inspiration, two consequences follow. First, that the rich and sacrosanct traditions attached to those symbols are lost, and they are turned into fads or accessories. These usages also often take place in an insensitive manner, without understanding the logic and sentiment guiding an age-old custom.  Second, that the celebration of the culture, without having to face the stigma and discrimination associated with it, angers the minorities, since each of their own cultural expressions, have always been met with negativity and exclusion.

Artistic license can only be justified insofar as the products of art do not cause harm to communities, while profiting off their heritage. While racial identity theft, in and of itself is questionable, at the bare minimum, the result of such appropriation must not cause harm to communities from where these ideas are borrowed. However, as has been shown, appropriation, (i) deprives authentic representations of a culture from entering popular spaces and gain representation, (ii) severs cultural elements from their context and forces their consumption devoid of the linked burdensome racial history, (iii) furthers a narrative of moderating raw racial symbols with white elements, in order to make them seem more palatable, (iv) often occurs in an insensitive fashion,  and thereby, hinders the movement towards greater inclusion and respect for minorities. Hence, cultural appropriation is deeply rooted in, and furthers racist ideology.

Scope of Legal Protection

Given this moral illegitimacy, where and how can law operate to protect rights affiliated with cultural symbols? For long, intellectual property rights have been utilised to make a case to that effect.

For commercialized products, geographical indicators provide a step in protecting the authenticity of items like food and clothing, while also limiting profiteering off the culture, to the areas from where it originated. Treaties administered by the WIPO (World Intellectual Property Organization) grant protection to cultural products like the Banarasi Sari or Tequila internationally, and thereby prevent cultural de-contextualization. American legislation like the Indian Arts and Crafts Act, also similarly prevent the marketing of unauthentic products as “Indian made”. While the path to protecting tangible cultural products that are commercialised, is clear, more difficulties arise in the cases of music videos or fashion, as described in the beginning of this piece.

In Navajo Nation v. Urban Outfitters, the usage of the tribe’s name for a collection led to a trademark infringement dispute, which was finally settled. However, there was evidence that the tribe had registered “Navajo” as a trademark way back in 1943. In most contemporary alleged instances of appropriation, neither can the “owner” of the symbol be clearly determined, nor can the threshold to qualify as an offence, be easily delineated.

While an assertion of collective intellectual property rights under the IPR framework is not unfathomable, several questions are left to be answered. Must the appropriator necessarily profiteer from the activity? Can symbols be utilized in a way which does not mock or dilute the culture, but is unconsented nevertheless? Moreover, who has the authority to permit the appropriation of a specific culture, in case of no formal authority established? It has been argued that European and American copyright law are excessively oriented towards individual ownership and rights, while cultural preservation necessitates a subaltern perspective, based on communal ownership and rights. A UN committee has been working to “develop criminal and civil procedures to recognize and prevent the non-consensual taking and illegitimate possession, sale and export of traditional cultural expression.” The future acceptance and enforcement of the committee’s determinations may remain doubtful, but there is a compelling ethical claim for the protection of culture from misuse and appropriation, even by the “eclectic” fashion industry or individual artists, that soon, must find way into our legal framework.

Oorvi Mehta