A law professor of West African heritage recently advocated making cultural appropriation a copyright violation, which would result in criminal and civil penalties for it. The professor, who teaches at the University of Miami, says that intellectual property law (which enforces copyrights, trademarks, and patents) should prevent Americans from making products rooted in the “collectively held cultural identities” of foreign or indigenous groups, such as the Asante people of Ghana.
In a recently published paper, “Protecting Cultural Personality,” Professor Janewa Osei-Tutu — a Ghanaian-American — criticizes firms such as Timbuk and Louis Vuitton for having “designed and marketed clothing based on traditional ethnic clothing styles or symbols” without the “knowledge, consent, or involvement of the cultural group” in question. As The College Fix notes, “Currently, individuals and companies have only backtracked from alleged ‘misuse of indigenous cultural heritage’ due to social pressure and criticism. Examples include Kim Kardashian, who got heat for marketing a clothing item with the term ‘Kimono,’ and automotive manufacturer Stellantis, which Osei-Tutu claims stopped using ‘Cherokee’ for its Jeep Cherokee in 2023 at the behest of the Cherokee Nation.” In reality, “declining sales, not Native American concerns, was the real” reason Stellantis stopped using it. “In addition, a new version of the Jeep Cherokee is slated to reappear in the U.S. this year.”
Osei-Tutu claims intellectual property laws are “underinclusive — at least in relation to valuable intangible cultural heritage from indigenous communities and local communities from the global south [which] allows corporations and those outside the community to capture and monetize this unprotected resource, which means that it is exposed and subject to misappropriation.”
In order to protect “cultural personality rights,” Osei-Tutu says cultural groups should have government-enforced “boundaries and markers” against cultural appropriation.
Under her proposal, lack of knowledge of a cultural group and its parameters would not be a defense to a lawsuit alleging a copyright or trademark or patent violation, because groups can be “self-defining,” and it’s “not necessary for the public to have significant knowledge of the group.”
The professor says that cultural personality rights enforceable through lawsuits and criminal prosecutions should include “representations of cultural identity that are either already protected as intangible cultural heritage under some national law or that could have been protected under IP law but for the collective nature, temporal limitations, or lack of commercial use.”
