Mexico’s new ban on the unauthorized use of indigenous art and design raises questions about the extent to which intellectual property laws can be used in a global push against the exploitation of marginalized cultures.
The federal law protecting the cultural heritage of Indigenous and Afro-Mexican peoples and communities empowers groups to sue if someone copies or imitates symbols, designs, or other elements of their heritage without permission, “even with a degree of confusion.” It provides for a prison sentence of up to 10 years for the illegal manufacture or sale of Indigenous creations.
But as the law ups the ante, it leaves crucial questions that could cast speculation about compliance and enforcement. And legally protecting a collective ownership of a culture can prove fundamentally problematic because of its inherent subjectivity and conflict with the principles of free speech and intellectual property rights.
The aim of the sanctions imposed this year is “noble,” but “the law is too abstract,” said Kiyoshi Tsuru, intellectual property attorney for TMI Abogados in Mexico City. He also said creators could respond by “shunning Mexican culture overall,” rather than just the indigenous groups the law is designed to protect.
“This is something that needs to be addressed. However, there are still doubts as to whether this is the most efficient way,” Tsuru said. “Creators need a basic level of legal certainty, and they also need their freedom of expression and freedom of work to be protected.”
The law does not specifically address what counts as a cultural creation, how close is too close, and who has the authority to issue permits in an Indigenous community.
“Somebody has to decide,” said Professor Rebecca Tsosie of the University of Arizona’s Indigenous Peoples Law and Policy Program. “Even among indigenous groups, there is a lot of overlap because they are linguistically and culturally related. You need someone to say who owns what if you want to create a system that is enforceable.”
“Doesn’t feel right”
When designer Carolina Herrera launched her Resort 2020 clothing line in 2019, the Mexican government loudly accused her of using well-known indigenous designs in her clothes. It promised legislation to address Indigenous cultural property.
That same year, across the border, Kim Kardashian prompted a social media backlash over alleged cultural appropriation to rebrand her shapewear brand Kimono.
Traditional IP law principles do not address such controversies. Cultural artistic designs are too ancient and general for copyright protections aimed at rewarding individual creators for specific works that eventually enter the public domain. Trademark rights stem from commercial use rather than creation and exist primarily to avoid consumer confusion as to who made a product.
Notwithstanding, “For outsiders, taking something that a minority developed and selling it for no benefit to the marginalized group not only feels ‘gross’ but ‘is just plain morally wrong,'” said IP attorney Lauren M. Ingram of Aronberg Goldgehn Davis & Garmisa in Chicago.
“It doesn’t feel right because it’s like continued oppression, economic oppression,” said Ingram, whose article on the subject was recognized by the International Trademark Association.
“Not an elegant solution”
A broader international awareness of the gains to be made from traditional art, style and symbols has led to a push to legally recognize and protect the intellectual property rights of historically marginalized people.
“There is a strong global feeling that appropriation of indigenous cultures is wrong and harmful that was not there 20 years ago,” Tsosie said.
Mexican law mirrors dialogue at places like the World Intellectual Property Organization, and countries are tackling the issue in different ways. But no coherent outline has emerged, and most approaches are much narrower than Mexico’s.
New Zealand forwards trademark applications containing Maori text or imagery to an indigenous committee.
In the United States, the Arts and Crafts Act of 1990 prohibits misrepresentation in the marketing of Native American crafts. The Navajo Nation sued under this law over the use of her name and artistic style to reach an Urban Outfitters settlement in 2016.
Some groups have turned to collective trademarks denoting group membership, such as the Alaskan Natives’ Silver Hand program, to denote verified Native products. Indigenous groups in the US and other countries, including Australia, have also used general unfair competition laws that also aim to deceive consumers.
But these mechanisms have limits. Trademarks often cannot prevent large companies from getting involved and either using designs in a non-trademarkable way or simply using and registering a trademark first. Some consumers are either unaware of this or do not find cross-cultural uses of public domain creations problematic. Ingram also pointed out that the question of who should be authorized to manage collective marks on behalf of a group remained a difficult one.
“There is no elegant solution,” said Ingram.
“It’s a killer”
An administrative agency will issue regulations for the new Mexican law by mid-July, which will presumably at least make the parameters of the law somewhat clearer. As it stands, the law says there will be a new culture register, but registration is not required to support ownership. It also advises settling disputes between or within a community through mediation, but does not specify who has legal authority to represent a group, leaving it up to the groups themselves.
According to the International Work Group for Indigenous Affairs, Mexico has 68 distinct indigenous peoples who make up more than 15 percent of the country’s population and speak hundreds of languages and dialects.
Some designs are known to originate from specific states, but also often overlap with different groups, said IP attorney Hugo Alberto Arriaga Becerra of Arriaga y Dominguez in Mexico City. The law states that if multiple groups claim an item, it cannot be approved for third party use without the consent of all.
“Most of this is against the Constitution,” Arriaga said, adding that because in the US, “I don’t think it’s going to be very useful to anyone, a law can be invalidated for inaccuracies.”
The uncertainty baked into the law will “scare off” companies operating in Mexico, said IP attorney Brian Pomper of Akin Gump Strauss Hauer & Feld LLP in Washington.
“I’ve been told many times, ‘I’m okay with bad laws,'” Pomper said, as companies can circumvent them. “‘What I can’t handle is uncertainty.’ It’s a killer.”
Uncertainty aside, there is no consensus as to whether and when alleged appropriation crosses a line, complicating efforts to create a reliable legal framework. Arriaga, for example, said he wasn’t offended by Americans wearing Mexican sombreros, saying, “Nowadays, people want to be offended by anything.”
Yet when Louis Vuitton sells a Basotho quilt for 30 times the price artisans from southern Africa could earn, as it did in 2017, the perceived injustice angers a large number of people in a way that is increasingly impossible to ignore .
This can lead to fundamental conflicts even among advocates of social justice.
University of New Hampshire law professor Ann Bartow said she “hates that fast fashion is invading people’s cultures and exploiting them in lurid ways.” But she also has a strong instinct for free speech and a tendency to favor low fair use barriers, which she says is at odds with an impetus for strong legal enforcement of appropriation.
Bartow said she wrote about First Amendment issues in trademark law in the 1990s but didn’t publish because “I couldn’t figure out how I came up with it.”
Ultimately, the kind of public pressure that led Kardashian to ditch the kimono brand might be the most effective way to hit back, some attorneys said.
Concerns about bad publicity could persuade companies to work with minority groups to include them before controversy, Tsosie said.
“That can be a very effective mechanism: raising awareness of this exploitation,” Tsosie said. “A lot of these companies are realizing that they need to work with these indigenous nations first before launching these advertising campaigns.”