Worn Without Credit: Unpacking Cultural Appropriation in Fashion

Abstract

Cultural appropriation in fashion is an urgent issue that encapsulates broader issues of power, legal invisibility, and cultural exploitation. This paper highlights the pervasive impact of cultural appropriation in the fashion industry, wherein fashion brands (including luxury and fast fashion) appropriate traditional cultural expressions (TCEs) from marginalized and indigenous communities without consent, attribution, or compensation. It identifies the limits of legal frameworks both internationally and domestically in India including the UNESCO Convention for Intangible Heritage, the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) and India’s Geographical Indications Act all of which lack enforceability or are too narrowly prescribed to offer meaningful protection in the face of intangible, collective, and spiritual forms of cultural expressions.

The examples drawn on globally included Isabel Marant’s appropriation of Mixe patterns, Carolina Herrera’s Resort 2020 collection, and Gucci’s ‘blackface’ jumper. The claims show how appropriation will remain unpunished as long as there are significant legal gaps and weak accountability systems in place.  Moreover, making the case for indigenous and marginalized communities in India, while TCEs in the form of traditional crafts like Warli or Odisha tribal art are often used in fashion, the materials themselves have no legal safeguards in place.

Following the doctrinal analysis in this paper, I suggest that a sui generis regime be established that recognizes collective cultural ownership and ownership obligations; demands prior informed consent; and licensing and attribution obligations to fashion brands as acknowledged. I also advocate for making active efforts towards community empowerment through legal mechanisms.

Introduction

Fashion is an industry of cross-cultural inspirations and influences, but has faced criticism for cultural appropriation, taking cultural products from historically marginalized peoples without acknowledgement, consent, or compensation.[1] Fashion brands, both luxury and commercial, have showcased indigenous textiles, symbols, and designs in their runway shows or product lines, many times taking them out of their original context and appropriating their meaning. Cultural appropriation is sometimes framed as cultural appropriation of culture or cultural appreciation; however, as Young notes. [2](2010) points out, the asymmetry of power and privilege between the appropriating organization and the source community highlights the appropriation/exploitation of the appropriation.

In the case of all forms of fashion cultural appropriations, cultural appropriation is not merely a social, ethical, or moral issue; it is also a legal issue, and is much more complex than socially or ethically engaging in “mingling” of cultures or surfaces. Cultural expressions, as with all copyrightable works of authorship, are usually oral, collective, and associated with a sacred event, but are not likely to be protected under existing forms of IP.[3]The absence of a legislated mechanism for the agency of Indigenous peoples restricts their ability and recourse if their cultural heritage is aseptic and taken without their consent and made commercially exploitable.[4]

The urgency of the problem is particularly salient in the Indian context because of India’s vast repository of tribal, folk, and indigenous traditions. While the mechanisms of legal intervention through legislation, such as the amended Geographical Indications of Goods (Registration and Protection) Act, 1999, theoretically provide some level of protection, they are ultimately limited in addressing the more significant issue of non-consensual appropriation of culture in the fashion industry. This paper will provide an assessment of how paved legal avenues both internationally and domestically can remedy the problem of cultural appropriation in fashion today, including case study examples to illuminate the considerable gaps in existing mechanisms for redress, and chart a path forward through policy changes and sui generis legislation.

Research Methodology

This research adopts a qualitative, doctrinal legal research methodology to analyze the issue of cultural appropriation in the fashion industry through a legal lens. The doctrinal approach involves a systematic examination of primary and secondary legal sources to assess the sufficiency and limitations of existing legal frameworks—both international and domestic—in addressing unauthorized use of traditional cultural expressions (TCEs).

Primary sources used in this research include:

• International legal instruments such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003), and drafts by the World Intellectual Property Organization (WIPO) concerning Traditional Knowledge (TK) and TCEs.
• Indian statutes like the Geographical Indications of Goods (Registration and Protection) Act, 1999, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and relevant constitutional provisions under Articles 29 and 51A(f).

Secondary sources include scholarly articles, case commentaries, international reports, journalistic accounts, and fashion law blogs (e.g., The Fashion Law), which offer critical insights into contemporary case studies and public responses. Legal commentary and academic literature from journals such as the Journal of Intellectual Property Law and Fashion Theory have also been consulted to understand emerging discourse and theoretical frameworks surrounding cultural appropriation.

This research does not rely on empirical data or fieldwork due to its doctrinal nature but draws on verified, authoritative, and peer-reviewed legal materials to ensure academic rigor and reliability.

Literature Review

Green and Kaiser initiate an academic conversation about the layers of complexity around cultural appropriation in the fashion industry. They argue that while appropriation has often driven creativity in fashion, it can also reinforce a linear and unequal power relationship, as by definition appropriators are often dominant groups who extract cultural observations, expressions, or artefacts from marginalized communities without acknowledgment and without sharing the benefits. The authors’ critique research, which separates appropriation from appreciation, oversimplifies a rich and well-conceptualized cultural and political subject matter.

The paper argues that appropriation is not limited to images, i.e., ‘visible appropriation’, but also includes (exploitation of) labor, ideas, and identity. The authors also highlight the role of fashion media and celebrity culture, which normalizes appropriation as cultures become commodified for mass consumption. Although some legal initiatives exist, like the U.S. Indian Arts and Crafts Act, to provide some protection, cultural appropriation has become increasingly problematic, as they are more limited in scope and do not protect a large number of indigenous communities. Ultimately, the authors are calling for an understanding of cultural appropriation that goes beyond outrage and kindles a structural, economic, and legal framework to address the use of cultural inspiration in fashion way that recognizes the rights of all subjects’ representation.

Peter Shand [5]Provides a follow-up legal and cultural critique of topicality to appropriation in the fashion industry through a case study of Māori cultural symbols, particularly the koru, in New Zealand. He discusses how fashion houses and corporations around the world have commercialized these indigenous design elements, and made them instruments of nation branding, while lackluster knowledge of their deeply spiritual, genealogical, and collective aspects. This appropriation of indigenous design stems from colonialism and capitalism and suppresses and depoliticizes indigenous modes of knowledge as mere aesthetics in contemporary intellectual property regimes.

Shand warns against the inadequacies of intellectual property laws, particularly copyright, trademark, and design protections that center on individual authorship and the material embodiment of individual authors. This creates an exclusion for indigenous cultural heritage that cannot be captured or embodied in a single authorial way because it is communal, spiritual, and holistic. In his discussion, he records failed attempts for remedies in the court system. His discussions involve an observation of the Maori economic effect of appropriated insignia like Air New Zealand’s use of the koru, of which they sought ownership. This is contrasted with the commercial success of the appropriated koru.

Shand’s overall message gives credence to their need to be sui generis legal systems in which the indigenous epistemology is included in supporting cultural sovereignty. His critiques ground the work of legal academics in technology, exploring the cross-section ‘eco-identity’ of fashion, cultural identity, and intellectual property.

Sádaba et al. [6] Provide an analysis of cultural appropriation in fashion and how it happens in a digital world, where social media can lead to speedy reputational crises for the brand. They claim that cultural appropriation in fashion arises from design, naming, and communicating, particularly when a brand appropriates symbols from a culture without consent from the community engaging in and having ownership of the culture. Their comparative analysis of Carolina Herrera’s Resort 2020 collection and Gucci’s ‘blackface’ jumper found that fashion can harm reputations for ethical reasons and economic and political ramifications.

The authors criticize the current system of international law. They point out that although there are a variety of instruments like UNESCO’s conventions and WIPO guidelines that address cultural appropriation, they are non-binding and do not implement enforceable remedies for violations around intangible cultural heritage. This paper presents the economic harm caused to indigenous communities, and the dislocation of their heritage through fast fashion, by commodity-making indigenous heritage, which takes away space from artisan markets, and commoditizes cultural meaning into low-cost, non-descript fast fashion.

In the end, this paper emphasizes the need for improved legal protections and ethical practices in fashion. It elucidates that in the digital world, corporate reputation is increasingly based on cultural appropriateness, meaning that brands must be aware of risk and negotiate cultural appropriateness socially and commercially as well as legally.

Legal Framework and Doctrinal Analysis

International Legal Instruments

While global, there is currently no binding legal instrument under international law directly addressing the unauthorized use of TCEs. The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) protects Tangible and Intangible heritage.[7]While the intangible heritage is defined as rituals, designs, and expressions, the weak enforcement and inability of the community to make legal claims, as in other examples of international law, means that the UNESCO Convention lacks a mechanism for enforcement.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 identifies the rights of indigenous peoples to control their cultural heritage and intellectual property. [8]The 31st article of UNDRIP identifies that States must “take effective measures to recognize and protect” such rights. However, similar to the UNESCO Convention, the declaration applies non-binding principles with reliance by communities on national indigenous legislation.

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore has made advances in drafting provisions about TCE protection, but no legally binding treaty has been adopted.[9]

Inadequacy of Traditional IPR Frameworks

IPR frameworks differ with country and context; copyright, trademark, and design law have, thus far, failed to encompass communal, orally communicated, and mutable cultural knowledge. Copyright, for example, is reactive and consequential it relying on identifiable authorship and originality, which have often been absent from indigenous design. Trademark, on the other hand, also only protects the commercial use of indigenous designs.

As a result, cultural communities are left with no protection when symbols, motifs, or designs are adopted by fashion brands. Furthermore, global fashion law of the day still privileges the creators within capitalist legal traditions, and cultural communities work in cultures and spirituality where property is collective or sacred.[10]

Indian Legal Context

India has one primary legislative mechanism in this regard, which is the Geographical Indications of Goods (Registration and Protection) Act, 1999. This Act provides some protection for the goods with geographic significance, like Banarasi sarees, Kanjeevaram silks, and Madhubani paintings.[11] Among the very limited collective rights, it does not protect the non-commercial expressions or intangible heritage (like a dance or ritual, or storytelling).

India’s Constitution has a provision, Article 29, which gives minorities the right to conserve their culture, but it is untested in cases of appropriation. Similarly, the Forest Rights Act (2006) and other tribal welfare laws do not address the commercial exploitation of indigenous heritage, for instance, the way the fashion industry has appropriated elements of indigenous heritage. Others, like Bansal (2014), argue that India needs a sui generis system to protect community-held knowledge/expressions that cannot fit within the current IP scheme.

Case study

Isabel Marant & Mixe Community (Mexico)

In 2015, French designer Isabel Marant was accused of using motifs from the Mixe community in Santa Maria Tlahuitoltepec, Oaxaca. Even though no legal action was taken, the issue raised many questions on whether or not and how to address the existing legal vacuum concerning cultural IP. Mexico addressed this by drafting the General Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities (2020), which is something India could consider adopting.[12]

Carolina Herrera Resort 2020 Case

As addressed by Sádaba et al 2020, the Resort 2020 collection by Carolina Herrera came under fire for appropriating designs used by Mexican indigenous contexts. The Mexican government requested an explanation for the use of these designs; however, there was no direct action taken, including legal action to enforce a binding protection, based to the legal vacuum. The case points to the fact that public pressure and digital activism may also serve as informal regulatory measures in the absence of legal enforcement.

 Gucci & Balaclava Jumper (2019)

Gucci’s jumper design found itself in hot water due to a blackface incident, and although it was not an identifiable case of cultural appropriation in the design, it did reveal how insensitivity to cultural history and context could harm a reputation. Gucci eventually took the initiative to launch scholarships as well as establish a diversity council. These may be ethical responses by Gucci, but once again, there was no identity of a legal context to impose any penalties or obligations for redress.

Indian Context: Use of Tribal Motifs

In India, appropriation often goes unnoticed legally but receives criticism in fashion circuits. Designers using tribal or folk motifs rarely credit the source community. For example, Warli art and Odisha’s tribal patterns have been used in both domestic and international fashion lines without acknowledgment or revenue-sharing. Since these are not protected under GI or copyright, no legal remedy is available.

Critical Analysis and Findings

While global awareness about cultural appropriation is growing, legal protection for cultural appropriation is still insufficient and fragmented. I examined both international instruments and Indian law and found a couple of points of concern regarding the lack of recognition of the role of traditional cultural expressions (TCEs), particularly those collectively held by Indigenous and tribal peoples.

Lack of Legal Protection

There is no adequate international legal framework to provide binding or enforceable protection against the unauthorized use of cultural heritage. A few instruments, such as the UNESCO Convention, UNDRIP, etc., are normative and non-binding instruments; they still serve as good parameters for what protection against cultural appropriation might look like if they were enforceable.[13] Similarly, WIPO’s Intergovernmental Committee has not formalized a treaty that has resulted in a legal vacuum while they continue the deliberative process that leaves communities in a continued exposure to unlawful appropriation.[14]

Indian law provides some protection through the Geographical Indications Act; however, this only applies strictly to regionally related products and does not encompass some non-tangible cultural expressions or symbols – e.g., designs, motifs, or rituals.[15] In addition to this, abstract forms of intellectual property, such as copyright or trademark, are not appropriate for the cultural forms being abstract and equally, collective and oral, and not necessarily bound to time.

Ethical Responses to Cultural Appropriation without Legal Accountability

Case studies show that public outrage, social media negativity, and ethical resistance are often the only disincentives a brand has when engaging in appropriation. This can be seen in Gucci’s response to the criticism of its use of an Asian mass display of prayer in a turtleneck, which many viewers felt was inappropriate and bordering on ridicule due to its commercial context. In the Isabel Marant case involving the Mixe community, the ability to make an enforceable legal claim was simply impossible, so there was no way the issue could be resolved without wasting time and money without any compensation.

The reliance on voluntary compliance and reputational risk speaks to a bigger problem. Brands can implement ethical criteria and codes of conduct without meaningful legal obligations, which allows them to continue appropriation of indigenous identities as ‘inspiration’ or cultural fusion.

Disempowerment and exclusion from the community

One of the most significant conclusions that surfaced in this research was the glaring and systematic exclusion of source communities from the fashion industry’s value chain. If let’s say a source community identity is commodified through a fashion product for example and they receive no economic compensation, public acknowledgement, or control over how their cultural elements are used, you have a potential for the erasure of culture and worse, a violation on their cultural self-determination, as referenced in Article 31 of UNDRIP, which states communities have the right to protect their cultural heritage.[16]

No procedural support (legal aid, ability to negotiate collectively, licensing framework) further weakens the position of indigenous creators, while the ‘narrative’ of IP enables to sustaining of power imbalances as the IP system favors the corporation and simultaneously renders traditional artists legally invisible.

Recommendation

Establishment of a Sui Generis Legal Regime

India, and similarly situated jurisdictions, should consider establishing a sui generis legal regime to protect traditional cultural expressions (TCEs). This legal regime should:

• Recognize collective ownership of culture.
• Recognize customary law and community-based practices in determining the extent of legal recognition.
• Recognize community rights to grant, license, or deny use of cultural elements.

This initiative would align with the ongoing efforts at WIPO to establish international norms that protect traditional knowledge and folklore.[17]

Statutory Licensing and Attribution

Fashion brands and designers should be required to:

• Obtain prior informed consent before using identifiable cultural elements.
• Negotiate fair licensing agreements with communities;
• Give attribution for cultural inspiration.

The statutory obligation could reflect the basic framework of the Creative Commons licensing structure, albeit modified to reflect the rights of the community, under domestic law.[18]

International Enforcement Initiatives

India should lead lobbying at multilateral forums to:

• Unlock binding international instruments that recognize and enforce rights to TCEs.
• Enable a cross-border dispute resolution mechanism for claims based on appropriation.

Such initiatives further substantiate existing soft instruments such as the UNESCO Convention and UNDRIP by creating practical enforceability mechanisms.[19]

Community Participation and Legal Empowerment

Empowering source communities is essential. The state should:

• Fund and facilitate legal literacy programs in tribal and indigenous regions;
• Support the establishment of community rights registries for TCEs;
• Provide access to legal aid and collective negotiation platforms.

This would ensure that the communities whose culture is commercialized have the tools to control and benefit from it.

Conclusion

Cultural appropriation in the fashion industry is a pertinent intersection of aesthetics, economy, and law. Creativity and cultural exchange are interwoven into fashion, but the misappropriation of traditional cultural expressions (TCEs), particularly from marginalized and indigenous communities, raises problems of exploitation, invisibility, and cultural loss. The present intellectual property (IP) regime, both internationally and in India, is incapable of addressing collectively held, evolving, and spiritual knowledge at the core of indigenous creativity.

International instruments like UNDRIP and the UNESCO Convention on Intangible Heritage are not legally binding nor enforceable, even as their symbolic power can be recognized. Nationally, India has initiated attempts to protect traditional goods with its Geographical Indications Act (GI), but this legal framework is limited to tangible and not intangible or symbolic cultural expression, statuettes that fashion brands often appropriate. As indicated in the legal analysis and case studies, fashion houses lie in exploitative agreements when they believe they can take cultural motifs without consent or accountability, as there are minimal enforceable legal norms.

Finally, a good-faith actor may rely on self-regulatory acts in fashion like apologies, diversity pledges, and cultural sensitivity practices; however, these gestures should not be a substitute for legal rights and remedies. In this respect of appropriative acts in fashion, it is suggested that a sui generis legal framework would be an essential reform to balance artistic freedom.

Reference(S):

[1] Richard A. Rogers, From Cultural Exchange to Transculturation: A Review and Reconceptualization of Cultural Appropriation, 16 Comm. Theory 474 (2006), https://doi.org/10.1111/j.1468-2885.2006.00277.x.

[2] James O. Young, Cultural Appropriation and the Arts (Wiley-Blackwell 2010).

[3] World Intell. Prop. Org. [WIPO], Intellectual Property and Traditional Knowledge (2022), https://www.wipo.int/tk.

[4] Conservation International, Free, Prior and Informed Consent in Context, Conservation Int’l (last visited June 19, 2025), https://www.conservation.org/projects/free-prior-and-informed-consent-in‑context.

[5] Peter Shand, *Scenes from the Colonial Catwalk: Cultural Appropriation, Intellectual Property Rights, and Fashion**, 3 Cultural Analysis 47 (2002).

[6] T. Sádaba, V. LaFata & A. Torres, Cultural Appropriation in the Digital Context: A Comparative Study Between Two Fashion Cases, in HCI in Business, Government and Organizations. Information Systems and Analytics, vol. 12204, at 504 (F.F.-H. Nah & K. Siau eds., 2020), https://doi.org/10.1007/978-3-030-50341-3_38.

[7] Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, 2368 U.N.T.S. 1.

[8] United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007).

[9] World Intell. Prop. Org. [WIPO], Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, https://www.wipo.int/tk/en/igc/  (last visited June 19, 2025).

[10] Peter Shand, *Scenes from the Colonial Catwalk: Cultural Appropriation, Intellectual Property Rights, and Fashion**, 3 Cultural Analysis 47 (2002).

[11] Geographical Indications of Goods (Registration and Protection) Act, No. 48 of 1999, INDIA CODE (1999).

[12]Teresa Sádaba, Valeria LaFata & Andrea Torres, Cultural Appropriation in the Digital Context: A Comparative Study Between Two Fashion Cases, in HCI in Business, Government and Organizations: Information Systems and Analytics 504, 510 (F. F.-H. Nah & K. Siau eds., 2020).

[13] Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, 2368 U.N.T.S. 1.

[14] World Intell. Prop. Org. [WIPO], Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, https://www.wipo.int/tk/en/igc/  (last visited June 19, 2025).

[15] Geographical Indications of Goods (Registration and Protection) Act, No. 48 of 1999, INDIA CODE (1999).

[16] United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295, art. 31 (Sept. 13, 2007).

[17] World Intell. Prop. Org. [WIPO], Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, https://www.wipo.int/tk/en/igc/  (last visited June 19, 2025).

[18] Jessica C. Lai, Indigenous Cultural Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore 87–89 (2023).

[19] Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, 2368 U.N.T.S. 1; United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/29  (Sept. 13, 2007).