In recent years, the regulation of industrial property in matters of cultural appropriation has grown in importance, driven by cases that have received national and international attention. Brands such as Zara, Anthropologie, and Patowl have been involved, triggered by the use and commercialization of textile designs deemed improper due to elements considered appropriation of the cultural heritage of indigenous peoples. To date, complaints have typically led to conciliation processes with the brands involved, resulting in public apologies and a share of the profits from the commercialized products containing designs of the affected communities.
In August 2022, Mercedes-Benz Fashion Week —one of Mexico’s most important fashion events— was held in Oaxaca, providing Mexican designers the opportunity to present their seasonal collections.
At the event, designer Ivette Morán de Murat —wife of Governor Alejandro Murat Hinojosa— launched the new collection of her brand Morav. The runway show sparked allegations of undue appropriation of textiles and designs, seemingly using techniques of Oaxacan culture featured in certain garments —potentially in contravention of the Ley Federal de Protección del Patrimonio Cultural de los Pueblos y Comunidades Indígenas y Afromexicanas (LFPPCPCIA, Federal Cultural Heritage Protection Law for Indigenous and Afro-Mexican Peoples and Communities)—. The designer argued her intent was to revalue Zapotec culture, particularly natural dyes.
What does improper appropriation mean under the LFPPCPCIA?
The Law defines improper appropriation as “the action of a natural or legal person, national or foreign, whereby they appropriate for themselves or for a third party one or more elements of cultural heritage, without the authorization of the indigenous or Afro-Mexican people or community that must grant it. Likewise, when authorization exists and the authorized party acts as owner of one or more elements of cultural heritage to the detriment of the dignity and integrity of the people or community to which it belongs.”
Cultural heritage is defined as “the set of tangible and intangible goods comprising the languages, knowledge, objects, and elements that constitute the cultures and territories of indigenous and Afro-Mexican peoples and communities, giving them a sense of community with their own identity and perceived by others as characteristic, to which they have full rights of property, access, participation, practice, and enjoyment in an active and creative manner.” Cultural appropriation can be determined at any time, since cultural elements may be deployed in ways that align with the design and deliberately resemble a previously created textile.
Procedure, sanctions, and standing
Any person may initiate the procedure, considering a potential infringement in copyright matters under Article 60 of the Law. If no agreement is reached in the conciliation stage, economic sanctions may be imposed, and in cases involving financial gain, imprisonment of 2 to 8 years. Administrative sanctions under Articles 70 and 75 range from MXN $48,000 to MXN $5,000,000.
Authorization procedure
The LFPPCPCIA provides that a third party may use, exploit, and commercialize cultural elements for up to 5 years, renewable through the same procedure. Had the designer obtained such authorization, the contingency would have been avoided or mitigated. In the case at hand, it appears the designer engaged in improper appropriation, allowing the community to initiate the procedure. The Law even anticipates that mere “inspiration” in the creation of the textile may constitute grounds for infringement.
Conciliatory nature and analogous cases
The nature of the procedure is conciliatory: both parties can reach an agreement to achieve a favorable outcome, as has occurred in other cases. In this scenario, an arrangement with the Oaxacan community for the commercialization of the collection would be feasible.
Conclusion
The fashion industry must be cautious about the collections it produces and the sources it draws from, as it may infringe the rights of indigenous peoples or appropriate their cultural identity. Since its publication on January 17, 2022, the LFPPCPCIA has proven to be a useful tool in making the issue of cultural appropriation visible, although it could benefit from faster processes and clearer sanctions.