FROM INSPIRATION TO APPROPRIATION: RETHINKING INTELLECTUAL PROPERTY PROTECTION FOR AFRICANCULTURAL EXPRESSIONS IN THE GLOBAL FASHION INDUSTRY.

ABSTRACT

African fashion has increasingly become a source of inspiration within the global fashion industry. Traditional textiles, beadwork symbols, hairstyles and indigenous design motifs originating from African communities have appeared on international runways and commercial collections. While such cultural exchange can foster appreciation and visibility, it may also result in cultural appropriation when communities are excluded from decision-making processes, denied recognition or deprived of economic benefits arising from the commercial exploitation of their cultural heritage. Existing intellectual property frameworks often prioritize individual ownership and limited periods of protection, creating challenges in safeguarding collectively owned and intergenerational cultural expressions.

This article examines whether contemporary intellectual property regimes adequately protect African traditional cultural expressions within the fashion industry. Focusing particularly on Kenya and regional African developments, it analyses the protection of Traditional knowledge and cultural expressions act, 2016, the Swakopmund Protocol and relevant international frameworks. The article argues that Africa’s emerging sui generis approaches provide a promising model for balancing cultural preservation, innovation and equitable benefit-sharing within the global fashion economy.

Keywords: Cultural appropriation, Traditional Cultural Expressions, Fashion law, Intellectual Property, Kenya, African fashion, Benefit-sharing.

1. INTRODUCTION

Fashion has never existed in isolation from culture. Across Africa, clothing, atonement and artistic expression communicate identity, social status, spirituality and communal belonging. The intricate beadwork of the Maasai, the geometric symbolism found in the kente cloth, the rich indigo traditions of West Africa and the elaborate craftsmanship embedded in indigenous textiles represent more than the aesthetic choices. They embody history, values and system of knowledge transmitted across generations.

In recent decades, the global fashion industry has increasingly incorporated African inspired designs with mainstream collections. Although cultural exchange has long been a feature of this artistic development, concerns arise, when cultural elements are adopted without acknowledgment of the origins, utilized outside of their traditional context or commercialized without the consent or participation of the communities from which they originate. Such practices have contributed to renew the debates surrounding the distinction between cultural appreciation and cultural appropriation within fashion.

The dimensions of this debate particularly significant. Conventional Intellectual Property systems, including copyright and industrial protection are generally structured around individual ownership, originality requirements , finite periods of protection, traditional and cultural expressions. However, they are often collectively old, evolved through intergenerational transmission, and write the significance from communal identity rather than individual creativity. Consequently, many African committees encounter difficulties in preventing and authorized commercial exploitation of their cultural heritage through traditional intellectual property mechanisms.

This article examines, whether existing intellectual property framework sufficiently protects African cultural expression within the global fashion industry particular emphasis is placed on Kenya’s Protection of Traditional Knowledge and Cultural expression Act 2016, alongside regional and international development, addressing traditional, cultural expressions. The article argues that while the significant progress has been made in recognizing communal, cultural rights, further legal reform and stronger enforcement mechanisms are necessary to ensure that African communities retain meaningful control over the use of their cultural heritage within the global fashion marketplace.

2. BACKGROUND AND CONCEPTUAL FRAMEWORK

2.1 Understanding cultural appropriation in fashion.

There is no universally accepted, legal definition of operation. Within the academic discourse, however, the concept generally refers to the adoption of use of elements associated with a particular culture by individuals or entities outside the culture and circumstances, characterized by unequal, power relations, lack of consent, inadequate, attribution, or economic explanation.

In the fashion context, cultural appropriation frequently manifest through their income incorporation of traditional motifs, garments, symbols, or craftsmanship into commercial products without recognizing the communities from which these elements originate. The controversy does not necessarily arise from cross-cultural influence itself, rather, it concerns the absence of respect, reciprocity and meaningful participation by social communities.

Distinguishing cultural appropriation from cultural appreciation remains challenging. Appreciation is more associated with collaborative partnership, proper attribution, compensation and cultural culture informed engagement. Appropriation, by contrast, may involve extracting cultural elements from the historical context and transforming them into market commodities that generate profit for external actors while excluding originating communities from both recognition and benefit-sharing

2.2 Traditional, Cultural Expression in Intellectual Property

Traditional, cultural expressions encompass the various rooms through which communities express and preserve their cultural identities. The World Intellectual Property Organization recognizes that such expressions may include designs, symbols, performances, handcrafts, names, and other artistic manifestation passed down across generations.[1]

Traditional cultural expressions present unique challenges for intellectual property law. Copyright protection generally requires identifiable authorship and origin expression fixed in material form. Industrial design protection is often limited by novelty requirements and specified durations. Trademarks primarily protect indicators of commercial origin. Consequently, legal mechanisms designed to protect individual creativity may adequately address cultural expressions that emerge collectively and evolve of extended periods.

2.3 The Kenyan context.

Kenya has adopted one of Africa’s more comprehensive legislative approaches to protecting Traditional knowledge and cultural expression. The Protection of Traditional Knowledge and Cultural Expression Act 2016 establishes a framework aimed at safeguarding cultural expressions against misappropriation, misuse, and unlawful exploitation. The legislation recognizes that cultural expressions may include jewelry, textiles, costumes, handcrafted and designs, thereby acknowledging the intimate relationship between culture and fashion within the Kenyan Society.[2]

The act further requires prior informed consent for setting uses of protected cultural expressions and incorporates principles relating to equitable benefits-sharing. Importantly, it reflects a shift away from exclusive individualistic conception of ownership towards recognizing collective custodianship of a cultural heritage.

2.4 Original African Development.

At the original level, the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore represents a significant African contribution to debates concerning cultural heritage protection. The protocol extends protection to tangible expressions such as jewelry, textiles, costumes, and handicrafts, while recognizing communities as the primary beneficiaries of such rights.

These developments suggest that African legal systems are increasingly embracing, sui generis approaches tell to the distinctive characteristics of traditional, cultural expressions. Rather than forcing communal heritage into framework designed for individual creators, these approaches attempt to balance, cultural preservation, commercial innovation, and the rate of indigenous and local communities.[3]

3. LEGAL ANALYSIS.

The core of the legal conflict between the global fashion industry and African local communities stems from a fundamental structural mismatch between conventional intellectual property regimes and the hostile collective nature of Traditional Cultural Expressions (TCEs)[4]. Under the international standard established by the Agreement on the Trade-Related Aspects of Intellectual Property (TRIPS), conventional IP frameworks are inherently, commercial, individualistic, and market-driven[5]. In contrast, African cultural heritage, operates under stewardship paradigm where cultural assets are collectively managed in preserved in perpetuity.

This structural mismatch is most visible in copyright and industrial design laws. Copyright protection requires an identifiable individual author, a fixed material form and a statutory novelty standard, granting protection only for a finite duration, which is typically 50 years after the creator‘s death standard framework like the Kenyan Copyright Act[6]. Similarly, industrial design laws require absolute novelty and offer a highly restricted period of protection of around 10 to 15 years[7]. African fashion elements such as the sidewalk patterns or rather the West Africa’s indigo textiles are collectively all authored by the entire communities of several generations hence they fail the individual authorship and the novelty requirements of conventional IP[8]. Consequently, these cultural assets have historically been classified as public domain, allowing multinational fashion brands to freely exploit and commercialize them without obtaining consent or providing any form of compensation[9].

In order to resolve this structural void, Kenya enacted the Protection of Traditional Knowledge and Cultural Expressions Act 2016 (No. 33 of 2016) to operationalize its constitutional mandate to protect indigenous cultural heritage[10]. This landmark, sui generis legislation directly challenges the individualistic model of conventional IP by explicitly vesting the ownership of traditional knowledge and cultural expressions directly in the originating community under section 4[11]. The act defines a community based on the shared attribute such as common ancestry, similar culture, unique mode of livelihood or geographical space[12].

Furthermore, the Act splits community rights into moral, and economic dimensions. Moral rights under the act existing perpetuity and are non-assignable. Section 21 establishes that communities have the right to claim attribution as the source of their cultural expressions to prevent derogatory treatment[13]. The act defines derogatory treatment as any material distortion, mutilation or alteration that is prejudicial to the community’s honour, reputation or cultural integrity[14]. In fashion context, this provides a vital defensive mechanism to prevent the printing of sacred ceremonial or ritualistic motifs onto inappropriate commercial clothing[15].

The commercial explanation of these cultural assets is regulated under the Access and Benefit Sharing (ABS) framework outlining section 25 to 29 of the Act. Any external commercial or industrial user who wishes to utilize a protected TCE outside its traditional, or customary context must obtain the Prior Informed Consent (PIC )of the community and enter into a legal binding authorized user agreement under section 32[16]. This agreement must incorporate fair and equitable benefit-sharing terms, ensuring that a portion of the commercial revenue is returned to the community, while prohibiting any derogatory treatment of the cultural elements used[17].

This statutory framework is mirrored and reinforced at the regional level by the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore[18]. Formulated under the African Regional Intellectual Property Organization (ARIPO), the protocol aims to prevent misappropriation of African folklore by establishing community ownership as its fundamental pillar[19]. Section 18 of the protocol designate local and traditional communities as the primary beneficiaries and owners of the right in expressions of folklore[20]. Furthermore, section 19 of the protocol outlines the scope of protection asserting that any exploitation of folklore taking place, traditional context, whether for commercial gain or otherwise, must respect the customary laws, protocols and practices of the originating community and must be accompanied by fair benefit-sharing[21].

However, the integration of customary law within these statutory frameworks creates a complex legal challenge known as inclusive subordination[22]. While Section 2 of the Kenyan Act and the Swakopmund protocol recognize customary laws as the primary normative basis of identifying TCEs and determining custodianship, customary law remains structurally subordinate to statutory law and Western-style common law frameworks within the postcolonial African legal systems[23]. When disputes arise, formalistic, statutory norms, often supersede unwritten customary practices, potentially undermining the protective spirit of sui generis regimes.

4. CASE LAW DISCUSSION

The limitations of conventional intellectual property( IP) regimes in resolving cultural disputes are highlighted by two landmark international lawsuits that fundamentally shaped the intersection of fashion law and traditional cultural heritage.

4.1 Antik Batik v Isabel Marant ( Judicial Court of Paris, 2015)

This European dispute involved a copyright battle between French designer Isabel Marant and the clothing label Antik Batik. Antik Batik sued Marant for copyright infringement of a traditional embroidery pattern used in Marant’s collection, which closely resemble designs originating from the indigenous Mixe community of Santa Maria Tlahuitolpec in Oaxaca, Mexico. The legal issue centered on whether a private commercial brand could claim exclusive copyright over a 600-year-old traditional design.

The Judicial Court of Paris ruled that neither brand claim proprietary rights, explicitly declaring that the design belonged to the Mixe community. Crucially, because the Mixe community was not a formal party to the litigation, they received no economic compensation of damages. This ruling highlights a profound, structural gap: western courtroom successfully recognize, cultural origins to deny corporate ownership, but remain incapable of awarding affirmative remedies or financial benefit-sharing to the actual indigenous creators.[24]

4.2 Navajo Nation v Urban Outfitters, Inc ( District Court of New Mexico,2016)

In this case, the Navajo Nation sued the US fashion retailer Urban Outfitters for marketing, accessories, clothing, and flasks under the Navajo name using geometric tribal prints. The shape of the trademark infringement under the federal Lanham Act and violations of the Indian Arts and Crafts Act ( IACA), which prohibits falsely suggesting goods are Indian-produced[25]. Urban Outfitters raised a fair use defense arguing that Navajo was a generic term describing a fashion style, rather than indicating a source. The federal court rejected the retailer’s generic argument, holding that registered tribal marks are presumed distinctive and valid.

Although the parties eventually settled in 2016, this litigation demonstrates that proactive registration of collective trademarks can serve as a powerful legal ‘sword’ to force multinational brands to negotiate commercial licensing agreements and respect indigenous names.[26]

4.3 Connecting Precedents to the Kenyan Framework.

These international disputes directly validate the necessity of Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act 2016. While the Navajo case shows the utility of defensive trademark registration, the Antik Batik ruling exposes the severe vulnerability of communities that rely on Western copyright frameworks to protect un-registered heritage. By establishing a sui generis model that bypasses conventional copyright constraints and mandates Prior Informed Consent and benefit-sharing, the Kenyan Act provide provides the exact affirmative protection that the Mixe community was denied in the French courts.

5. CRITICAL ANALYSIS.

The current legal landscape reveals a structural mismatch between the de jure protections offered by emerging sui generis regime in de facto realities of the global fashion supply chain. This research highlights three critical findings that defined this disconnect.

First, the enforcement of traditional cultural expressions is paralyzed by an acute financial asymmetry. While the Protection of Traditional Knowledge and Cultural Expressions Act 2016 correctly identifies communities as legal owners of their cultural heritage,[27] these communities lack the requisite capital to monitor and prosecute infringement in international jurisdictions. When a fashion house misappropriates a design, the community’s legal right remains purely academic because they cannot afford the prohibitive costs of international litigation. Consequently, the law currently functions as a shield that is financially inaccessible to most vulnerable stakeholders.

Second, the Public Domain Paradox acts as a mechanism of neo-colonial extraction. Western centric copyright frameworks categorize communal heritage as public domain once the period of conventional protection expires[28]. This effectively strips cultural motifs, which are living, and evolving assets of their proprietary status, leaving them open for corporate exploitation. The French court’s decision in Isabel Marant versus Antik Batik illustrates this systemic failure, where the law protected the status quo of corporate extractivism by refusing to recognize indigenous communities as legitimate holders of proprietary rights.[29]

For the territoriality of intellectual property remains a fatal bottleneck. Domestic statutes cannot effectively restrain extra-territorial infringement by global brands, operating in jurisdictions that do not recognize sui generis community rights.[30] Without a harmonized, multilateral WIPO treaty that mandates cross border reciprocity, domestic frameworks remain isolated.

The path forward requires a paradigm shift: from viewing TCEs as stagnant folklore to living intellectual property. Until international trade policy pivots to acknowledge collective custodianship as a standard commercial reality, domestic sui generis frameworks will remain symbolic declarations rather than effective tools of economic sovereignty.

6. CONCLUSION

The protection of traditional knowledge and cultural expressions in the global fashion industry is no longer a peripheral issue of folklore, it is a central battleground for economic and cultural of vanity. This research has demonstrated that while sui generis frameworks, such as the Kenya’s 2016 Act, provide a necessary and statutory foundation, they remain structurally limited by the territoriality of intellectual property and the prohibitive costs of international litigation.

The public domain paradox continues to facilitate systemic extraction of indigenous designs by multinational corporations, thus effectively rendering communal heritage as a casualty of outdated legal paradigms. For African designers and indigenous custodians, current domestic protection are essential but inefficient in isolation. To move beyond symbolic recognition, there must be a global shift towards multicultural and reciprocal enforcement mechanisms that view collective custodianship as a standard commercial reality. Only through harmonized international policy and traditional heritage, be transformed from a vulnerable source into protected living intellectual property.

Bibliography

Primary Sources

Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, 15

April 1994) 1869 UNTS 299

Antik Batik v Isabel Marant (Tribunal de Grande Instance de Paris, 2015)

Copyright Act 2001 (Kenya)

Designs Act 2000 (Kenya)

Indian Arts and Crafts Act 1990 (United States), 25 USC 305e(b)

Navajo Nation v Urban Outfitters, Inc. No 12-Cv-195 BB/LAM (D.N.M.2016)

Protection of Traditional Knowledge and Cultural Expressions Act 2016 (Kenya)

Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (Swakopmund, 9 August 2010)

Secondary Sources

Books

Scafidi, Susan, Who Owns Culture?

Appropriation and Authenticity in American Law (Rutgers University Press 2005)

Journal Articles

Scafidi, Susan, ‘Intellectual Property and Fashion Design’ (2006) 1(1) Intellectual Property Law Review 115

Theses

Mwangi, Claude K, ‘Protecting traditional knowledge in Kenya through African Customary Law: an analysis of inclusive subordination’ (Master’s thesis, Strathmore University 2019)

Mwaura, Caroline Wambui, ‘Optimal Management of Traditional Knowledge’ (PhD thesis, University of Cape Town 2019)

Other Sources

Mutimba, Joy, ‘The Maasai should fight against cultural appropriation of their traditional knowledge by luxury fashion labels'(Medium, 20 January 2020) https:// medium.com/@joybmutimba/the-maasai-should-fight-against-cultural-appropriation-of-their-traditional-knowledge-by-luxury.- d9211139689e accessed 6 June 2026

Taubman, Antony and Leister, Matthias, ‘Analysis of Different Areas of Traditional Knowledge and Cultural Expressions Protection’ (WIPO Technical Paper, 2021)

World Intellectual Property Organization, ‘Traditional Cultural Expressions’ (WIPO)

[1] World Intellectual Property Organization, Traditional Cultural Expressions (WIPO)

[2] Protection of Traditional Knowledge and Cultural Expressions Act 2016 (Kenya), ss2,16 and 18

[3] Swakopmund Protocol on the Protection of Traditional Knowledge an Expressions of Folklore (2010) ss2,18-19

[4] Susan Scafidi, ‘Intellectual Property and Fashion Design’(2006) 1(1) Intellectual Property L aw Review 115,120.

[5] Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, 15 April 1994) art 15.

[6] Copyright Act 2001, s 23.

[7] Designs Act 2000, s 2(d).

[8] Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005) 112.

[9] Joy Mutimba, ‘The Maasai should fight against cultural appropriation of their traditional knowledge by luxury fashion labels’ (Medium, 20 January 2020) https://medium.com/@joybmutimba/the-maasai-should-fight-against-cultural-appropriation-of-their-traditional-knowledge-by-luxury-d9211139689e accessed 6th June 2026.

[10] Protection of Traditional Knowledge and Cultural Expressions Act 2016.

[11] Ibid s 4.

[12] Ibid s 2.

[13] Ibid s 21.

[14] Ibid s 2.

[15] Caroline Wambui Mwaura, ‘Optimal Management of Traditional Knowledge’ (PhD thesis, University of Cape Town 2019) 108.

[16] Protection of Traditional Knowledge and Cultural Expressions Act 2016,s 25, s 32.

[17] Ibid s 35.

[18] Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore ( Swakopmund, 9 August 2010)

[19] Ibid preamble.

[20] Scope of Swakopmund Protocol, s 18.

[21] Ibid s 19.

[22] Claude K Mwangi, ‘Protecting traditional knowledge in Kenya through African Customary Law: an analysis of inclusive subordination’ ( Master’s thesis, Strathmore University 2019) 15.

[23] Ibid 34

[24] Antik Batik v Isabel Marant ( Judicial Court of Paris, 2015)

[25] Indian Arts and Crafts Act 1990, 25 USC 305e(b)

[26] Navajo Nation v Urban Outfitters, Inc No 12-cv-195 BB/LAM (DNM 2016)

[27] Protection of Traditional Knowledge and Cultural Expressions Act 2016 (Kenya) s4.

[28] Agreement on Trade-Related Aspects of Intellectual Property Rights ( Marrakesh, 15 April 1994) 1869 UNTS299, art15.

[29] Isabel Marant v Antik Batik ( Tribunal de Grande Instance de Paris, 2015)

[30] Antony Taubman and Matthias Leister, ‘Analysis of Different Areas of Traditional Knowledge and Cultural Expressions Protection’ (WIPO Technical Paper, 2021) 12.