Authored By: Akansha Kumari
CHANDIGARH UNIVERSITY
ABSTRACT:
The fashion industry, one of the most lucrative in worldwide business, has always taken inspiration from the different cultures around the world. But the line separating respectful cultural appreciation from the exploitation of culture, whether in public discussion or, more importantly, in the law, has proven elusive at best. This piece analyses the extent of what can be borrowed in fashion within the confines of intellectual property laws and the rights of indigenous rights holders at the nexus of intellectual property, fashion (or copyright) and indigenous rights and interests. It critically examines current international and domestic frameworks such as the work of the World Intellectual Property Organization (WIPO) on the Traditional Knowledge (TK) and the Traditional Cultural Expressions (TCEs), the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the GRATK Treaty 2024, and domestic legislation like the Indian Arts and Crafts Act, 1990 (USA) and the Federal Law for the Protection of Cultural Heritage of Indigenous Peoples (DV-TEI), 2022 (Mexico). Using the lens of key cases such as Navajo Nation vs Urban Outfitters, this article proposes that traditional IP law is inherently incapable of safeguarding ICEs and that a sui generis international legal framework, based on community consent and collective ownership and a focused approach to equitable benefit-sharing, is the just and sustainable remedy to this ethical and legal dilemma.
Keywords: Cultural Appropriation; Traditional Cultural Expressions (TCEs); Fashion Law; Indigenous Rights; Intellectual Property;
INTRODUCTION:
In 2022, a French high-end fashion brand released a line of clothes with very similar complex geometric designs to the embroidery designs of a local Oaxacan native community. Fashion critics touted the collection as ‘globally inspired’, and it sold for thousands of dollars apiece. The generations-old patterns were kept alive by the artisan communities, while for them, the patterns had sacred social and ceremonial significance; they were neither rewarded nor advised, nor were they given any compensation.
Cultural appropriation in fashion involves using elements of a minority (or traditionally marginalised) culture, such as motifs, textiles, patterns, silhouettes, symbols, and techniques of handcrafting without authorisation, recognition or sharing of credit for the commercial gain made from their use. It is very different from “cultural appreciation”; understanding, learning, respecting, and giving credit for a culture, and supporting its keepers.
It is indeed a crucial issue and is contentiously debated with respect to its legal aspects. IP law, which is the natural legal protection, was based on the Western perception that there is an individual author, an already fixed creation and a temporary protection. Traditional cultural expressions, on the other hand, are items of cultural heritage that belong to the community, more than to an individual; they are embodied in the past and future, but they are never for sale for a profit. The result is a vast gap in the protection which the fashion industry, ever on the lookout for ‘inspiration’, has eagerly exploited.
The failure to lawfully afford protection to TCEs is not episodic (just an administrative mistake), but rather a systemic injustice, this article contends. It establishes colonial relations of production while promoting the idea that such relations are creative; it takes away control over culture and its associated values by claiming that it is for sale, and it deconstructs indigenous practices and beliefs by turning religious objects into tradable commodities. The emergency demands for law reform, which must be based on community sovereignty.
BACKGROUND AND CONCEPTUAL FRAMEWORK:
Defining the Terms of the Debate:
The difference between cultural appropriation and cultural appreciation is not just one in nomenclature, as it governs whether or not one can engage in another culture in an ethically responsible and legally permissible way. Scholars Lenard and Balint define cultural appropriation as the standard group taking a valuable part of another culture and using it for their benefit, without the other group’s permission and with a reasonable expectation that such appropriation would be harmful to the group. Appreciation is an engagement, an acknowledgement, and a mutual benefit; however, appreciation involves engagement, acknowledgement, and mutual benefit. The separation lies largely on three grounds: consent (did the community consult with them or not?); credit (is their cultural origin recognised?); and compensation (do the communities benefit from the generated economic value?
From a legal perspective, the knowledge systems and intangible folklore of indigenous and traditional communities can be grouped into two categories. Traditional Knowledge (TK) is an inherited, cumulative generational accumulation of the knowledge, practices, and innovations indigenous communities possess, such as the technical expertise on a textile or traditional dye that they might employ. Traditional Cultural Expressions (TCEs) (also known as ‘expressions of folklore’) are the material or immaterial cultural products (designs, patterns, symbols, rituals, music, oral communications, etc.) of these communities.
The Political Economy of Fashion Appropriation:
The connection in the fashion industry with natives and traditional people is very imbalanced in terms of power. A luxury fashion line can take one of the old designs, stamp it out in large quantities, and market the products internationally for thousands of dollars and the people of the community who actually created the design reap no benefit and face no legal penalties. This is not a market failure; it’s “as designed” by intellectual property laws that describe protectable innovation in ways that are impervious to indigenous innovativeness.
A structural cause of the resort industry’s resistance to appropriation accountability is the fact that fashion design itself is difficult to copyright, since the industry is based upon iteration of copying. In the fashion sphere, it is not so clear whether a protectable design feature is an unprotectable utilitarian feature, as the US Supreme Court explained in Star Athletica v. Varsity Brands (2017)[1]. It also provides a safe cover for the appropriation of indigenous design, allowing any fashion brand to say it was ‘inspired by’ any indigenous design rather than ‘copying’ it, leaving room for creative freedom within the dominant fashion system.
Appropriation hurts; its effects are not limited to economic disadvantage. The use of traditional design motifs without permission can have a significant and harmful impact on a community’s culture, as WIPO scholar Brigitte Vezina highlights.
LEGAL ANALYSIS:
A. The Failure of Conventional IP Law:
The traditional base of intellectual property (IP) is built around three very specific principles: authorship, commercial exploitation and limitation in time (copyright, trademark, patent, and trade dress). Indigenous communities are adversely affected by each pillar in their own unique manner.
Copyright Law: The Berne Convention system imposes the requirement that it be ‘original’ and have ‘an identifiable human author’. Generally, TCEs have a problem with both tests. They are considered to have been written by many and handed down over the ages, so it would be difficult to determine the original author. Furthermore, they have been attacked as being not capable of meeting copyright formalities requirements in most jurisdictions, since neither existed at the time of their creation. “The term of copyright ‘vacates space’ for the public, so that future creators can make use of it; it was never supposed to be used to legitimise business use of cultural heritage of the living communities”, writes Professor Madhavi Sunder, a copyright expert.
Trademark Law: trademark law provides the least complete (but most immediate) protection. A community has the right to register a cultural symbol and prevent its unauthorised commercial use. For instance, the Navajo Nation owns several registered trademarks for the word ‘Navajo’ and for the use of specific traditional geometric figures. But there are some caveats which should be noted about trademark protection: (1) it is geographically limited; (2) it is commercially focused; (3) it requires trademark registration, which is costly; and (4) most importantly, it fails to encompass the harm of using a trademark image or symbol as a representation of an existing culture besides the registered trademark, or the harm of cultural misrepresentation itself. The ‘Navajo’ trademark may apply in the United States to Urban Outfitters, but will have no meaning if the same design is applied to Urbonis (a French or Japanese brand).
Patent Law: An invention: A process is something that can be done in a certain way in a novel way. By definition, traditional knowledge is neither new in the meaning of a patent nor an invention of an individual. Ironically, centuries-old indigenous knowledge, techniques or skills have turned out to ‘exist’ in the public domain, meaning that no one, including indigenous communities themselves, can patent them. This results in a complete lack of protection for traditional craft techniques from commercial misappropriation.
B. International Framework: WIPO and UNDRIP:
The international community has generated a complex matrix of overlapping frameworks, none of which is yet a full and binding protection for TCEs in the context of fashion, but recognises the systemic failure of traditional IP.
In 2000, WIPO created its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) with the aim of working on the development of international legal instruments to address TK and TCEs. During more than 20 years of negotiations (usually 3-4 sessions a year), the Committee has generated draft articles, which are still non-binding. The last significant development was the new GRATK Treaty adopted unanimously by the members of WIPO in May 2024 and ratified by 44 states, as of May 2025, which obligates patent applicants to disclose the source of the invention (geographical origin) and its origin in connection with indigenous traditional knowledge (source from the indigenous community).
The best normative support for TCE protection is provided by the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007. Indigenous peoples’ cultural heritage and traditional knowledge and practices, and their traditional cultural expressions are specifically identified as rights, which include their right to control, protect and develop their heritage, traditional knowledge and practices and traditional cultural expressions. Article 11[2], also, obligates States to offer a remedy through effective means for cultural, intellectual, spiritual and religious property seized without the Free, Prior and Informed Consent of the peoples concerned. But UNDRIP is a Declaration made in the UN General Assembly, not a treaty that is legally binding, and several major States within the Fashion Industry – the US, Canada, Australia and New Zealand – were initially opposed to its adoption.
C. Domestic Legal Framework: A Comparative Study:
There are also a few jurisdictions in the domestic market that have specific laws protecting TCEs in a commercial setting.
The Indian Arts and Crafts Act of 1990 (IACA) prohibits any art or craft item that is falsely associated or suggested to be made by a Native American, but which is not actually their creation. The Act would eliminate the opportunity for brand fraud and give tribes a cause of action against fraudulent imitations. When Urban Outfitters used the ‘Navajo’ trade mark, the use was triggered not just by the Navajo Nation trademark, but also by the IACA. But the Act will only be effective for the protection of branding and labelling fraud — not to stop the copying of the design patterns themselves, unless the copyist commits their own fraud by claiming indigenous ownership, status or authenticity.
Mexico’s Federal Law for the Protection of Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities, 2022, is the most forward-looking indigenous and/or Afro-Mexican heritage protection law in the world. In 2021, the Government of Mexico demanded accountability from Zara, Patowl and Anthropologie for using Oaxacan indigenous patterns without permission or payment, considering the patterns to be ‘collective property’ of the communities. This is enshrined in the 2022 Law by the recognition of indigenous cultural expressions as collective heritage subject to prior informed consent and remuneration for commercial use.
In India, the protection of traditional designs has been broken up into various Acts like the Designs Act, 2000, the Geographical Indications of Goods (Registration and Protection) Act, 1999 (GI Act), and the Biological Diversity Act, 2002. Community-level protection is possible with geographical indications of traditional textiles, including Kanjivaram sarees and Pashmina shawls, to stop those other than the originating producers from using a geographic designation. But, unlike geographic protection, GI protection does not prevent a fashion company from using a protected geographic name while copying a fashion image or referring to a fashion production technique, such as a weave pattern or design motif.
Case Law Analysis:
Navajo Nation V. Urban Outfitters, Inc., 2016 WL 5339684 (D.N.M. 2016)[3]:
This landmark case is the most illustrative judicial response to indigenous cultural rights regarding fashion. The Navajo Nation brought a lawsuit against Urban Outfitters in the US District Court for the District of New Mexico in 2012 on behalf of the company for its ‘Navajo’ brand of goods, such as underwear, flasks, and clothes with similar patterns.
The case had the following noteworthy aspects. First, it proved that trademark law, as limited as it is, can be a useful measure for the indigenous communities with the resources to register and greatly enforce their marks. The registered trademarks of the Navajo Nation provided it with a clear cause of action, whereas a tribe without registered trademarks would not have had one. Secondly, the case called into question the usefulness of this tool, as Urban Outfitters showed that ‘Navajo’ now refers to a pattern style and no longer to the Navajo Nation. Thirdly, the IACA’s use of its application proved to be evidence of the sale of a fraudulent branded product, and, in theory, it may have been identical to such a product without the ‘Navajo’ branding and yet meet the criteria of the statute.
Mexico’s Enforcement Actions: Zara, Patowl, and Anthropologie, 2021:
In 2021, the Ministry of Culture of Mexico issued formal diplomatic demands to international fashion companies, Zara, Patowl, and Anthropologie, because they marketed Oahu textiles, embroidery and patterns that they had appropriated from the Mexican indigenous people in their commercial collections. The communities’ designs were called ‘collective property’ by the Minister of Culture, setting the Principles of Free, Prior and Informed Consent (FPIC) as a prerequisite to the commercial use of their land. These activities have not led to any official judicial process, but they illustrate a surge in the capacity of States to safeguard indigenous and community-based TCEs by employing executive powers, and to set the tone of the conversation, moving from “inspiration” to “theft.” These principles were legally codified in Mexico in 2022, with both civil and criminal sanctions for commercial use of ICH without consent and remuneration from the community.
Indian Geographical Indication Cases: Protecting Traditional Textiles:
The GI Act has been used in India to safeguard the traditional craftsmanship of local and tribal people in the field of textiles. Kanjivaram silk sarees, Pochampally ikat and Pashmina shawls are registered for geographic indications, thereby ensuring that non-originating manufacturers are not able to claim the same as their origin. The registration of Darjeeling tea, that of a traditional product, set an important precedent in community-based geographic protection. As mentioned, there are certain cautions with GI protection: For starters, the underlying design motif by itself cannot be protected. A fashion brand can legally use the Banarasi pattern on machine-made fabric without having to call it ‘Banarasi’ since the current framework fails to provide a remedy for the damage to the artisan communities.
CRITICAL ANALYSIS AND FINDINGS:
The research on the legal regime and case law has identified five systemic weaknesses that make up the ‘protection gap’ in the fashion sector for TCEs.
The first one is the originality paradox: The law on IP rewards novelty and also individual creation. By definition, TCEs are old, communal, and always developing: they cannot meet the standards for originality without losing their roots in the tradition of the people that makes them relevant to a culture. Individual authors will be structurally excluded from any protection system that is based on authorship.
Second, then the mismatch in time: Copyright has a limited term; Cultural Heritage is of a permanent nature. When a legal framework is used to transfer a living community’s traditions to the public domain after a length of time (or at all), it is dealing with a case of raw materials communal exploitation on a worldwide level. The public domain built is not middle-of-the-road, or neutral: it supports industries that have the resources to take advantage of the public domain.
Thirdly, collective-individual disjunction – that is, IP rights can be held by an individual or a corporation, whereas community ownership is foreign to the IP paradigm. This leads to the outcome that there is nothing legally protectable from a collective use of expression of culture, and communities lack the legislative means of asserting their rights.
Fourth, the Ethics-law gap: It was evident from the many cases cited that public and community pressures were the major restraints on ‘fashion appropriation’ rather than law. Nike pulled its lineup of Samoan merchandise, and Zara had to answer to the Mexican government, largely for the reasons of a poor image and government rebuke. No good law is parasitic on a good conscience, but rather it must have life of its own and be effective.
This solution has to be established as a sui generis international legal mechanism, thus not a model of any IP category that has yet been developed and created. It should contain: (i) community held collective title to TCEs, exercised by recognised bodies; (ii) a mandatory free, prior, informed consent (FPIC) requirement for any commercial use of TCEs; (iii) protection obligations which impose an equitable burden on the commercial exploiters; (iv) perpetual protection with no time limit; and (v) international enforceability through a WIPO-managed dispute resolution mechanism.
CONCLUSION:
At the heart of the question, ‘cultural appropriation or cultural appreciation?’ is a matter of culture, power, and economics—that is, who does what and who benefits from cultural exchange. It is not a tale of free creative inspiration soaring in the fashion industry, but an industry-wide practice of indigenous and traditional designs systematically removed from those who do not have the legal means or the economic power to stop corporations from exploiting them.
The current IP system (copyright, trademark, patent, and even geographical indications) is structurally weak in safeguarding TCEs. Geographically limited domestic laws, such as the Indian Arts and Crafts Act and the Mexican Heritage Law from 2022, have an impact. Although it is historic, the GRATK Treaty 2024 does not tackle TCEs. While UNDRIP is normative, it doesn’t have any “bending regulations.
A legally binding, effective, sui generis international agreement is needed that puts a focus on community sovereignty, free prior and informed consent, equitable benefit-sharing, and effective enforcement. Until this meaning is rectified, fashion will go global, drawing inspiration from indigenous culture but lacking backbone or even ethics.
There is a difference between appreciation and appropriation, and it’s a distinction the law should make, not one a corporation is exploiting for creative latitude, but one a community is asserting for protection of what is and always has been theirs.
REFERENCE(S):
INTERNATIONAL INSTRUMENTS & TREATIES:
UN Declaration on the Rights of Indigenous Peoples (UNDRIP), UNGA Res 61/295, 13 September 2007.
WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK Treaty), adopted 24 May 2024, WIPO, Geneva.
Convention on Biological Diversity, 1992; Nagoya Protocol on Access and Benefit-Sharing, 2010.
Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples,
Whakatane, New Zealand, June 1993 (UN Doc E/CN.4/Sub.2/AC.4/1993/CRP.5).
Berne Convention for the Protection of Literary and Artistic Works, 1886 (as amended).
WIPO, Intellectual Property and Traditional Cultural Expressions (WIPO Publication No 913E, 2017).
WIPO IGC, The Protection of Traditional Cultural Expressions: Draft Articles, WIPO Doc WIPO/GRTKF/IC/47/6 Rev (2024).
DOMESTIC LEGISLATIONS:
Indian Arts and Crafts Act, 1990 (USA), 25 USC § 305 et seq.
Federal Law for the Protection of Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities, Mexico, Official Journal of the Federation, 17 January 2022.
The Designs Act, 2000 (India).
The Geographical Indications of Goods (Registration and Protection) Act, 1999 (India).
Biological Diversity Act, 2002 (India).
CASE LAWS:
Navajo Nation v. Urban Outfitters, Inc., No. 12-CV-195 (D.N.M., filed 2012, settled 2016).
Star Athletica, LLC v. Varsity Brands, Inc., 580 US 405 (2017).
Mexico Ministry of Culture v. Zara/Patowl/Anthropologie (Diplomatic Demand, 2021).
BOOKS & JOURNAL ARTICLE:
Riley A and Carpenter K, ‘Owning Red: A Theory of Indian (Cultural) Appropriation’ (2016) 94(4) Texas Law Review 859.
Siems M, ‘The Law and Ethics of Cultural Appropriation’ (2019) 15(4) International Journal of Law in Context 408.
Young JO, Cultural Appropriation and the Arts (Blackwell 2008).
Lessig L, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin Press 2004).
Muthukumar K and Ravenscroft S, ‘Safeguarding Indigenous Culture from Appropriation: How Copyright Law Fails to Protect Indigenous Cultural Expressions’, Indian Affairs, Vol 195, Fall/Winter 2025.
Brunk C and Young JO (eds), The Ethics of Cultural Appropriation (Wiley-Blackwell 2009).
Farley CH, ‘Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?’ (1997) 30 Connecticut Law Review 1.
ONLINE & INSTITUTIONAL SOURCES:
WIPO, ‘Supporting Indigenous Communities at the Grassroots’ (WIPO Magazine, 2023) <https://www.wipo.int>.
Atmos, ‘Protecting Indigenous Designs from the Fashion Machine’ (25 July 2025) <https://atmos.earth>.
Washington Journal of Law, Technology & Arts, ‘Stolen Threads: Intellectual Property and Cultural Appropriation in the Fashion Industry’ (8 November 2024) <https://wjlta.com>.
The Legal Quorum, ‘Drawing the Line: Cultural Appropriation, Cultural Appreciation, and the Limits of Intellectual Property Law’ (April 2026) <https://thelegalquorum.com>.
Centre for Art Law, ‘Innovations in Protecting Art and Design: Mexico’s Recent Ban on Cultural Appropriation in Context’ (27 April 2023) <https://thelegalquorum.com>
[1] Star Athletica v. Varsity Brands (2017) 580 U.S. 405 (2017).
[2] UN Declaration on the Rights of Indigenous Peoples: resolution/ adopted by the general assembly, A/RES/61/295, Art. 11.
[3] Navajo Nation V. Urban Outfitters, Inc., 2016 WL 5339684 (D.N.M. 2016)
