FASHION LAW AND CULTURAL APPROPRIATION: A LEGAL PERSPECTIVE

ABSTRACT

The global fashion industry has long drawn inspiration from diverse cultures and ethnicities, and often it’s without any acknowledgment or consent. This practice is cultural appropriation and it raises complex legal and ethical questions, especially in jurisdictions where traditional knowledge and cultural expressions lack robust protection. As fashion law emerges as a distinct legal discipline, it offers a framework to address these challenges through intellectual property rights, community safeguards, and ethical regulation.

INTRODUCTION

Fashion, is more than fabric, it is a reflection of identity, heritage, and power. In recent years, fashion houses and designers have faced criticism for appropriating cultural symbols, garments, and motifs from marginalized communities. While some argue that fashion thrives on cross-cultural exchange, others highlight the exploitative nature of such practices when done without consent, attribution, or compensation. This article examines how fashion law can address these issues, focusing on intellectual property regimes, international instruments, and the Indian legal context.

Cultural appropriation in fashion is not merely an ethical concern it is a legal one. The absence of adequate legal frameworks to protect traditional cultural expressions (TCEs) and Indigenous knowledge has led to widespread misuse and commodification. This article explores the contours of fashion law, the legal implications of cultural appropriation and the need for reform in India and beyond.

CULTURAL APPROPRIATION IN FASHION

Cultural appropriation refers to the adoption or use of elements of one culture by members of another culture. This concept is often discussed in the context of power dynamics, where a dominant culture takes from a minority or marginalised culture without permission, understanding, or respect for the original cultural context.

In simple words, the term cultural appropriation means to the unauthorized use of elements from a culture, often by members of a dominant group without any proper recognition or respect. The main methods or forms through which cultural appropriation happens in fashion are:

• Misuse of Traditional Clothing: Sometimes designers Designers or influencers use traditional or sacred garments (like kimonos, sarees, turbans, or headdresses) as fashion statements without understanding or respecting their cultural meaning. It is problematic because these garments often represent identity, spirituality, or social status not a mere fashion statement.
• Copying Cultural Designs and Patterns: Fashion Brands sometimes reproduce indigenous or ethnic patterns (weaves, embroidery, beadwork, motifs) without crediting or compensating the original creators. It leads to the local artisans losing their recognition and income and the heritage becomes commercialised.
• Using Religious or Spiritual Symbols as Fashion: In some instances, sacred symbols (like the cross, Om, bindi, or rosary) are used as decorative motifs or jewelry pieces.
• Fusion Without Credit: When designers claim innovation when they blend cultural elements with modern trends but fail to acknowledge the cultural source. It leads to the Cultural erasure under the guise of creativity.

CULTURAL APPRECIATION VS. CULTURE APPROPRIATION

Cultural appropriation occurs when elements from a marginalized or minority culture are used in a way that disrespects, mocks, or decontextualizes such elements. Typically, this happens without the acknowledgment or understanding of a culture, reducing its traditions to mere aesthetics and trends. Examples may include wearing sacred symbols as jewelry or accessories without understanding their meaning or importance or wearing traditional garments as part of a costume.

Cultural Appropriation can have significant negative effects, creating feelings of identity theft and cultural erasure.   By removing cultural elements from their original context, causes groups to be praised for something that communities have historically been stigmatized for. This can be seen through hairstyles, African hairstyles like cornrows and locs were once criticized for being “unprofessional” and are now rebranded as “trendy” when worn by popular influencers and designers, sidelining the black communities that created them.

On the other hand, cultural appreciation comes from a place of understanding, honor, and celebration of other cultures. Appreciating a culture involves acknowledging its origins and ensuring that its integration into mainstream fashion respects traditions and values. Cultural appreciation can be a beautiful way to celebrate and bring cultures together in a way that embraces traditions. An exemplary example was a collaboration between French designer Christian Louboutin and Indian designer Sabyasachi to honor and respect Indian culture using traditional techniques and materials, appreciating traditional artisans.

The distinction between Appreciation and Appropriation lies in intent and respect. Fashion has the power to unite cultures and celebrate diversity, honoring tradition rather than exploiting it. Educating the public on what constitutes appropriation makes all the difference. 

LEGAL FRAMEWORKS

The Intellectual Property Gap

Traditional intellectual property law offers limited protection against cultural appropriation. The existing legal frameworks were designed to protect individual creators and commercial entities, not communities or cultural groups with collective heritage spanning generations.

Copyright Law’s Limitations

Copyright protection requires originality, fixation in a tangible medium, and an identifiable author. Traditional cultural expressions often fail these requirements because they are collectively created, transmitted orally or through practice, and continuously evolve over time. The Kente cloth patterns of Ghana’s Ashanti people, developed over centuries through collective cultural practice, cannot be traced to a single author who could claim copyright. Moreover, copyright protection has time limits, typically the author’s life plus 70 years whereas cultural heritage persists indefinitely.

Even when traditional designs could theoretically qualify for copyright, the communities that created them rarely have the resources or legal infrastructure to register and enforce such rights internationally. An indigenous community in rural Guatemala, for example, would face enormous challenges in detecting, let alone litigating against, a European fashion brand that copied their traditional weaving patterns.

Additionally, copyright protects specific expressions, not underlying ideas or styles. A fashion designer could argue that while they were “inspired” by traditional patterns, their specific interpretation is sufficiently original to constitute a new copyrightable work, even if the result closely resembles the traditional design.

Trademark Law’s Narrow Scope

Trademark law protects brand identifiers and prevents consumer confusion but does not safeguard cultural symbols or traditional designs unless they function as source identifiers for specific goods or services. A traditional pattern, however significant culturally, cannot receive trademark protection simply for its cultural importance.

Some indigenous communities have successfully registered collective trademarks for traditional products. The Harris Tweed Association holds a certification mark ensuring that cloth branded as “Harris Tweed” meets specific standards and originates from Scotland’s Outer Hebrides. Similarly, geographical indications protect products like Oaxacan textiles. However, this approach requires significant legal resources, sophisticated organizational structures, and provides protection only within specific jurisdictions. A trademark registered in Mexico offers no protection against infringement in France or China.

Furthermore, trademark law focuses on preventing consumer confusion about commercial source, not protecting cultural integrity. If consumers are not confused about who made a product, no trademark violation occurs, regardless of cultural appropriation.

Design Patent Limitations

In the United States, design patents protect ornamental designs for articles of manufacture but require novelty and non-obviousness. Traditional designs that have existed for centuries cannot meet the novelty requirement. If a company copies a traditional Indian sari design, that design fails the novelty test because it pre-exists in the public domain.

The brief protection period 15 years in the United States inadequately serves cultural heritage that communities have maintained for millennia. Design patents also require formal application processes and significant legal expertise, creating barriers for communities with limited resources.

The Navajo Nation Trademark Case[1]

One notable example involved the Navajo Nation’s successful enforcement against Urban Outfitters. In 2012, the retailer launched a “Navajo” product line including clothing, accessories, and even a “Navajo Hipster Panty” and “Navajo Print Flask.” The Navajo Nation, which had registered “Navajo” as a trademark, sued for trademark infringement and violations of the Indian Arts and Crafts Act.

The case settled in 2016, with Urban Outfitters agreeing to stop using “Navajo” and donate to Native American organizations. This victory was possible because the Navajo Nation had proactively registered its name as a trademark—an option unavailable for most traditional designs or cultural expressions. The case also benefited from the Indian Arts and Crafts Act, a unique U.S. federal statute prohibiting the sale of products falsely suggesting they are Native American-made.

LEGAL FRAMEWORKS IN INDIAN CONTEXT:

India, with its rich textile heritage and diverse cultural traditions, has developed several legal mechanisms to address cultural appropriation, though significant gaps remain.

Geographical Indications: India has been relatively successful in using the Geographical Indications of Goods (Registration and Protection) Act, 1999 to protect traditional textiles and crafts. Notable registrations include Pochampally Ikat from Telangana, Kanchipuram Silk from Tamil Nadu, Chanderi Fabric from Madhya Pradesh, and Banarasi Brocades and Sarees from Uttar Pradesh. These GI registrations prevent unauthorized commercial use of these names and create legal recognition of the traditional production methods and regional origins. However, GI protection is limited to registered products and does not extend to traditional motifs, patterns, or designs that appear across multiple regions.

Traditional Knowledge Digital Library (TKDL): India established the TKDL in 2001, primarily to prevent bio-piracy and misappropriation of traditional knowledge in patent applications. While focused on Ayurveda, Unani, Siddha, and Yoga, the TKDL model demonstrates India’s proactive approach to documenting traditional knowledge. However, no equivalent comprehensive database exists for traditional textile designs, embroidery patterns, or fashion-related cultural expressions, leaving these vulnerable to appropriation.

Copyright Act, 1957: Indian copyright law faces the same fundamental limitations as other jurisdictions when protecting traditional cultural expressions. Traditional designs typically lack identifiable authors and fall outside copyright’s temporal scope. However, contemporary artisans who create works based on traditional designs can claim copyright in their specific expressions, though this provides limited protection against appropriation of the underlying traditional patterns.

The Design Act, 2000: Under India’s design registration system, new and original designs can be protected for 15 years. Some traditional artisan communities have attempted to register traditional patterns as designs, but this raises paradoxes—the designs are not “new” in any meaningful sense, yet they deserve protection. The Geographical Indications Registry has occasionally overlapped with design protection, but coordination between these systems remains inadequate.

Handicrafts and Handloom Acts: The Handicrafts (Development and Regulation) Act and various state-level handloom legislation provide some protection for traditional weaving communities, but these focus primarily on production standards and economic development rather than intellectual property rights. The Handloom Reservation of Articles for Production Act reserves certain textile articles for production only by handloom workers, but this does not prevent design copying by mechanized manufacturers.

Legal Reforms and Solutions

Addressing cultural appropriation in fashion will likely require multi-faceted approaches combining legal reform, industry self-regulation, and market pressure.

Sui Generis Legislation

Creating specialized legal protections for traditional cultural expressions could fill gaps in existing intellectual property law. Such systems could recognize collective rights held by communities rather than individuals, accommodate oral and evolving traditions that lack fixed authors, and provide perpetual or extended protection periods reflecting the enduring nature of cultural heritage.

However, designing these frameworks raises complex questions. How should protected communities be defined? Who within a community has authority to grant permissions or negotiate licenses? How can systems prevent fraudulent claims while remaining accessible to legitimate communities? How should law balance cultural preservation with artistic freedom, innovation, and the public domain?

Some propose a system requiring disclosure and benefit-sharing rather than absolute prohibitions. Designers would be free to draw inspiration from traditional designs but would need to disclose the cultural sources and negotiate fair compensation with source communities. This approach resembles requirements in pharmaceutical and agricultural industries for benefit-sharing when using traditional knowledge.

Contractual and Collaborative Models

Even without new legislation, fashion brands can adopt collaborative models that involve source communities in design processes, provide fair compensation, and ensure proper attribution. Several designers have pioneered successful partnerships with indigenous artisans. Designer Carla Fernández partners with indigenous Mexican artisans, crediting them by name and sharing profits. Bethany Yellowtail, a Northern Cheyenne and Crow designer, creates contemporary fashion rooted in Native American aesthetics while ensuring authentic cultural representation.

Legal frameworks could encourage such collaborations through incentives, such as preferential treatment in government contracting, favorable tax treatment for ethically-sourced designs, or certification systems that provide market advantages to brands engaging in genuine collaboration.

Enhanced Enforcement and Remedies

Where legal protections exist, enforcement remains challenging. Indigenous communities often lack resources to monitor global markets, identify infringements, and pursue litigation. Establishing legal aid programs, creating specialized tribunals with simplified procedures, or enabling collective action mechanisms could improve access to justice.

Remedies should extend beyond monetary damages to include injunctive relief preventing further use, corrective advertising to address cultural misrepresentation, and reputational consequences. Some propose that damages in cultural appropriation cases should flow to affected communities rather than individual plaintiffs, funding cultural preservation and economic development.

CONCLUSION

Fashion law’s approach to cultural appropriation remains incomplete. Existing intellectual property frameworks inadequately protect the collective cultural heritage of indigenous and minority communities. While some legal tools offer limited recourse, comprehensive solutions will require legal innovation, international cooperation, and industry commitment to ethical practices.

The path forward likely involves hybrid approaches: specialized legislation recognizing collective cultural rights, expanded protections against cultural misrepresentation, incentives for collaborative design models, and enhanced transparency. Equally important is recognizing that not all cultural appropriation questions are purely legal; they implicate fundamental issues of respect, equity, and historical justice that law alone cannot resolve.

As global fashion increasingly draws from diverse cultural traditions, the legal system must evolve to ensure that creativity and commerce do not come at the expense of cultural integrity and community rights. The challenge for fashion law is to balance innovation and artistic freedom with meaningful protections for communities whose heritage enriches the global wardrobe. Only through such balance can the fashion industry move from appropriation toward genuine appreciation and equitable collaboration.

REFERENCE(S):

• Cultural Appropriation V. Appreciation in Fashion – the Influence of modern fashion.
• “Cultural appropriation in the fashion industry: a critical study into the legal issues surrounding it.” By Winnie Mathew.
• Indian Copyright Act, 1957
• Indian Design Act, 2000
• Geographical Indications of Goods (Registration and Protection) Act, 1999
• Indian Arts and Crafts Act of 1990 (U.S.)
• UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (2003)

[1] Navajo Nation, The v. Urban Outfitters, Inc. 2016 WL 5339684