Cardozo AELJ Author Interview Series: Aman K. Gebru
The Cardozo AELJ Author Interview Series seeks to give our readers further insight into the Articles and Notes published in the Cardozo Arts & Entertainment Law Journal. In this interview, Professor Aman K. Gebru discusses his Article, The Piracy Paradox and Indigenous Fashion, which was published in Volume 39, Issue 2.
Aman K. Gebru is an Assistant Professor at the University of Houston Law Center, where he teaches courses on contracts and intellectual property law. Professor Gebru’s research examines issues at the intersection of intellectual property law, innovation policy, and knowledge governance from domestic and global perspectives. His recent projects examine how intellectual property laws deal with collectively developed creative expression, such as memes, dance crazes, hackathons, and indigenous (traditional) expression.
Our interview with Professor Gebru was conducted by Aydan Urias. Aydan is a Second Year Law Student at the Benjamin N. Cardozo School of Law and a Staff Editor for Vol.42 of the Cardozo Arts & Entertainment Law Journal. Aydan is interested in intellectual property law, specifically trademark and copyright across creative industries.
AU: What inspired you to write about the cultural appropriation of indigenous fashion?
AG: Ever since I studied intellectual property law in law school I have been curious about communities which have been left out from that field of law. Indigenous people and local communities in various parts of the world were not at the table when intellectual property laws were being developed. The result has been ignorance of the various interests and expectations of these communities. I had already published articles exploring this issue when I received the invitation to comment on a seminal work by Professors Kal Raustiala and Christopher Sprigman. The opportunity allowed me to examine how the theory they developed in their article, The Piracy Paradox, applies in the case of indigenous fashion.
AU: Copying seems like a part of the circle of life in Western fashion. What do you perceive are the most important long-term economic and creative harms to indigenous groups (both local communities and those closed to commercialization) when mainstream designers normalize using sacred symbols in their “new” designs?
AG: The harms of cultural appropriation include the loss of economic advantage, loss of control over communal identity, cultural degradation, and offensive use of sacred cultural symbols. Western culture entertains varied treatment of copying depending on the type of fashion and who “owns” the cultural symbols involved. When it comes to indigenous groups, their expression has been presumed to be in the public domain free for anyone to use without needing authorization or consultation. For many communities this treatment is a continuation of the stealing of land and other resources during the colonial era. If the community is open to their symbols being commercialized, the main concerns may be loss of economic gain, lack of benefit-sharing, and absence attribution (or misattribution). Beyond the economic loss, communities lose the power to define their communal identity and as a result their culture is defined by outsiders. However, the most troubling instances occur when sacred symbols which are not meant to be commercialized are used in offensive ways by others who do not understand the culture.
AU: When mainstream fashion designers in the West try to justify using sacred cultural symbols from indigenous groups, especially those not open to commercialization, do you think that they consider the implications of these practices in conjunction with the trauma of colonization? Or do you think there’s a tendency to disconnect “borrowing” indigenous fashion designs from the history of colonization?
AG: It is hard to understand the intention of designers using sacred cultural symbols. But based on common justifications, there seems to be a presumption that any cultural symbol that is not owned by corporations is fair game and can be copied. These dynamics are enabled by how intellectual property laws define what is owned and what is unowned. Since most indigenous groups have not formed formal corporations on par with global fashion houses, this presumption seems to justify the actions of designers. There may also be conscious or unconscious action to capitalize on cultural symbols thought to be exotic, in part because of colonization.
AU: Sometimes, especially in the Global North, if you see indigenous communities or marginalized groups calling out celebrities or brands for cultural appropriation, the incident is talked about as if it’s just celebrity gossip. How do we communicate the legal and cultural harms of cultural appropriation and de-center the celebrity or designer who may be causing offense?
AG: This is consistent with many other complicated and important issues that get overshadowed by what celebrities do—examples of celebrities or popular companies being part of “scandals” is good for the media because it captures the public’s attention, at least for a news cycle or two. One important side to the discussion of cultural appropriation is that the legal system does not currently offer workable solutions to claims of cultural appropriation. Given this limitation, I believe offering accessible but thoughtful information on the harms created by cultural appropriation will be helpful. Here, it is also important to show that some borrowing of cultural symbols by outsiders is okay, useful, and should even be encouraged. Cultures have always been in a constant state of diffusion and this trend will continue. Therefore, what is helpful is explaining the challenging line-drawing exercises between cultural appropriation and cultural appreciation, which I hope will de-center the celebrity and offer something more useful to the audience.
AU: What are some recent examples of local indigenous communities resisting the “vulgarization” of their culture?
AG: A leading example of indigenous communities resisting appropriation is the successful challenge by the Navajo Nation against Urban Outfitters’ use of the name Navajo in association with its products. Urban Outfitters had created a line of products including “Navajo hipster panties” and “Navajo print flask” without consulting the Navajo Nation. Representatives of the Nation brought a lawsuit alleging trademark infringement among other claims. Urban Outfitters settled out of court for an undisclosed amount but with agreements to collaborate on a line of Native American products. This example is unique because the Navajo Nation had trademark registrations which enabled it to fight this particular use. Most other communities do not have similar rights. Aside from this example, there are various trends of creating databases of indigenous designs or names, and licensing labels like those created by the website Local Contexts, which help create efficient methods of collaborating with indigenous communities.
AU: What do you think are the benefits of “merging the local and the global” in the fashion industry that are overlooked?
AG: I think cultural diffusion is beneficial when done with sufficient knowledge of the value a cultural symbol has for the source community. Ethically sourced creative expression has immense potential to create cross-cultural understanding and appreciation—something that is desperately needed in a rapidly globalizing world. This is also consistent with how cultures have evolved over millennia. Merging the local and the global is just part of this inevitable process and will function as a cultural bridge between seemingly distant places and cultures.
AU: Bonus fun question: Who are some of your favorite indigenous designers and why?
AG: We are starting to see several indigenous designers breaking through the fashion industry. Bethany Yellowtail is an award-winning designer and a member of the Northern Cheyenne Nation located in Montana. Her fashion design blends social justice and her Native American identity to offer unique designs that are not represented in the mainstream fashion industry. Kofi Ansah was a pioneering Ghanian fashion designer whose career spanned decades and continents. Educated in the UK, his fashion career took off in London, but he returned to work in Ghana, where he transformed African fashion through his unique designs, use of local fashion accessories, and original marketing ideas. Another pioneer is Ethiopian footwear designer, Bethlehem Alemu. Her life story and the impressive success she attained are inspirational for future generations of designers. I am excited for a future where we’ll see more indigenous designers taking the lead in the fashion industry.
