By Luke E. Steffe
from Volume 12 (2022-2023)
Download this Article in PDF format from the Jerome Hall Law Library’s Digital Repository.
Abstract
American fashion represents an eclectic patchwork of diverse experiences and ideas; however, drawing upon Indigenous communities’ cultural identities and sacred traditions can easily cross the line between inspiration and appropriation. In reality, designs derived from culturally significant symbols, which have been stolen from Indigenous communities and stripped of their meaning, flood the American market. From runway shows to sports teams’ mascots to undergarment designs, these manifestations of cultural appropriation occur legally under the existing U.S. copyright regime, and adaptations to the current, Westernized system of intellectual property (IP) rights must integrate Indigenous perceptions of communal ownership with respect to their intellectual property. Copyright protection empowers native communities with both a sword and a shield, allowing for the protection and enforcement of their sacred art forms. By expanding current notions of authorship, copyright protection can extend to traditional designs and protect them from constant appropriation, and quite frankly, stealing by fashion labels. Moreover, granting a valid copyright to Indigenous designs in fashion must be accompanied by the explicit recognition of moral rights to provide comprehensive protection. In the United States, a suit for copyright infringement relies on the existence of a valid copyright; thus, the current law denying these protections to Native American and Alaskan Native communities leaves them without legal remedy when faced with the appropriation of their intellectual property. This Note proceeds in three Parts. Part One discusses Indigenous designs in fashion as a classification of Traditional Cultural Expressions (TCEs). Part Two analyzes the legal framework of U.S. copyright law as it stands and offers insight into the discrepancies between Western and Indigenous notions of intellectual property rights. Finally, Part Three suggests two legislative adaptations to account for these discrepancies and provide for the protection of Indigenous fashion designs, and all classes of TCEs, drawing upon international solutions to this issue.
