Manon Baur (Geneva, Switzerland)
At a time when demands for more transparency, inclusion and ethics-compliant strategies in creative processes are greater than ever before, cultural appropriation has become the black sheep of fashion, either making headlines or silently slipping through the cracks of the industry’s fiercest watchdogs. From fast fashion icons to the greatest maisons and their distinguishing excellence, or any world-renowned brand in-between, no one is spared. And surprisingly enough, missteps keep happening.
Take the example of Gucci selling Sikhs turban, yet a fundamental part of the Sikhs peoples’ identity with both a social and spiritual meaning behind it, at a retail price of about 800 USD[1]. French designer Isabel Marant also sold a blouse directly inspired from the clothing of Mixe women, an indigenous tribe in Mexico, without acknowledging in any way the inspiration behind the product, asking the community for its collaboration nor giving any compensation for the exploitation of its cultural expressions[2].
Needless to say that this is a serious issue. Sure, this could come off as surprising, considering that there are legal frameworks (already in place or currently discussed at the highest level[3]) that could, in theory at least, help in the fight against cultural appropriation, mainly by dissuading designers from exploiting cultural expressions from indigenous communities or any other form of once-dominated cultural group, by granting rights to the latter. These legal instruments range from national intellectual property statutes (on copyright or trademarks for example) to specific acts on the protection of indigenous art and traditional expressions[4]. In addition, there are multiple local or international declarations that reaffirm the existence of indigenous rights over their arts and crafts[5].
As promising as all this may seem, the reality is significantly different. Because of the heterogeneous and transversal nature of cultural appropriation, which is due to its ethical, historical, social and moral components, the law per se is not sufficient. Practice has shown this very well. For the last 20 years, only very few cases of cultural appropriation have ended up in court (though the ones that have did show promising results, in terms of damages awarded or injunctions granted). In fact, although some disputes are confidentially settled[6], the vast majority seem to make the headlines before falling into oblivion, making far too many indigenous tribes and communities invisible again.
The main issue is that there’s no level playing field. On the one hand, there are powerful fashion houses and brands, mainly (if not entirely) driven by profit and their customers’ wants and needs. They often lack understanding and adopt insensitive (not to say disrespectful) approaches. On the other hand, there are indigenous communities that have been overlooked forever, whose voices are shut and whose resources are far too often limited when confronted to the costs and length of potential legal proceedings. Some tribes can only afford to publicly call out brands, hoping for their most thoughtful (yet rare) reaction. In May 2021, fast fashion brand Zara, online shop Patowl and American clothing retailer Anthropologie came under fire for selling pieces of clothing directly inspired by cultural elements of indigenous communities from Oaxaca, Mexico[7]. The Mexican Secretary of culture addressed communications to the three brands (twice!), asking for public apologies, explanations concerning the use of Oaxacan cultural expressions and details as to the potential benefits for the communities involved[8]. To this day however, no reaction has been voiced.
Sure, one solution could be to let the industry’s watchdogs[9] and their ferocious (yet extremely powerful) backlash shine, giving even greater power to the name and shame phenomenon. As effective as it may be, such a solution would in fact not really stand up to the desire to create an ethical, accessible, and collaborative framework to fight cultural appropriation. The phenomenon should rather be addressed upstream, before any rip-off.
Fashion houses, brands and designers must become allies in the preservation of the cultural heritage they wish to exploit. Considering that they are responsible for cultural appropriation in the industry, it is also their responsibility to adopt more ethically oriented values and thoughtful approaches in creative processes. To that extent, it is worth mentioning the growing importance of inclusivity leaders and officers working in-house (a relatively new role in the industry), whose job is to oversee all matters related to inclusion (and therefore ethics), and more specifically to provide guidance concerning any marketing and product-related decision. In practice, contact should be established with cultural groups. Research should be conducted in advance. Free and informed consent should always be obtained for any form of exploitation. Collections should be created collectively, and visibility should be given to minorities. As an illustration, Dior and Maria Grazia Chiuri have managed to do it brilliantly for the house’s latest cruise collections, where emphasis was put on a collaborative creative process with locals.
All things considered, in order to exchange ideas and keep inspiring one another, which is one of the tenets of a modern multicultural society and of the fashion industry, cultures should always be respected. Although the law can help, indigenizing our legal systems or westernizing theirs will never be sufficient. Instead, the time has come for all fashion actors to revolutionize the industry and to proactively start fighting cultural appropriation from within.
[1] Chiu Allyson, ‘Not a cute fashion accessory’: Gucci’s $800 ‘Indy Full Turban’ draws backlash, The Washington Post, [https://www.washingtonpost.com/nation/2019/05/16/nordstroms-indy-full-turban-gucci-draws-sikh-protests/] (11.09.2021).
[2] Pozzo Barbara, Fashion between Inspiration and Appropriation, in MDPI Laws Volume 9, Issue 1 (MDPI) 2020, p. 9.
[3] For example, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which is attached to the WIPO, has been working for the last decade towards an agreement on an international legal instrument that would (inter alia) protect traditional cultural expressions.
[4] See the US Indian Arts and Crafts Act of 1990 (P.L. 101-644).
[5] For example, there is the UN Declaration on the Rights of Indigenous Peoples from 13th September 2007 or British-Columbia (Canada) Bill 41 (Declaration on the Rights of Indigenous Peoples Act from 24th October 2019).
[6] See for example the press release “Sealaska Heritage, Rizal Family Settle Lawsuit Against Several Defendants” from 3rd March 2021 concerning the dispute Sealaska Heritage Institute, Inc., v. Neiman Marcus Group LTD, LLC, et al., [https://www.sealaskaheritage.org/node/1367] (11.09.2021).
[7] Hills Megan C., Mexico accuses Zara, Anthropologie and Patowl of ‘cultural appropriation’, CNN, 1st June 2021, [https://edition.cnn.com/style/article/mexico-zara-anthropologie-cultural-appropriation/index.html] (11.09.2021).
[8] Gobierno de México, La Secretaría de Cultura pide explicación a las marcas Zara, Anthropologie y Patowl por apropiación cultural en diversos diseños textiles, [https://www.gob.mx/cultura/prensa/la-secretaria-de-cultura-pide-explicacion-a-las-marcas-zara-anthropologie-y-patowl-por-apropiacion-cultural-en-diversos-disenos-textiles] (11.09.2021).
[9] Take the example of Diet Prada, the Instagram account with over 2 million followers that is considered today as the leading authority of this unconventional and virulent online justice.
EDUCATION
École d’avocature (ECAV), Geneva, Switzerland | February – June 2021
- Holder of the certificate in advanced studies in legal profession, delivered by the University of Geneva.
University of Geneva, Geneva, Switzerland | 2019-2021
Master of Law
- Holder of a Master of Law from the University of Geneva (overall GPA: A), with an exchange semester at the University of Zurich, Switzerland
- Master thesis on the International Protection of Cultural Properties (A): “The legal protection of traditional cultural expressions against cultural appropriation in fashion: issues, critics and solutions”; Nominated for the “Best Master Thesis of the Year” Award (Finalist – Top 8)
University of Geneva, Geneva, Switzerland | 2016-2019
Bachelor of Law
- Holder of a Bachelor of Law from the University of Geneva (overall GPA: B)
- Bachelor thesis on Art and cultural property law (A): « The challenges of street art legal protection in view of criminal law, copyright and property rights »
WORK EXPERIENCE
Sigma Legal, Geneva, Switzerland | June – July 2020
Summer Intern
Sigma Legal, Geneva,Switzerland | December 2019 – February 2020
Short-term Intern
Edwards Life Sciences, Nyon, Switzerland | July – August 2019
Compliance Intern, EMEAC Ethics and Compliance (internship in English)
BianchiSchwald LLP, Geneva, Switzerland | June – July 2019
Summer Interncer
CERTIFICATES
Certificate in fashion law, with merit/cum laude, awarded by the Milano Fashion Institute | July 2021
Certificate in Transnational Law, awarded by the University of Geneva | June 2020
A Law Student’s Toolkit, awarded by Yale University (through Coursera) (96% GPA) | September 2019
General Course on Intellectual Property, awarded by the WIPO (Grade: A) | December 2019