Alasdair MacIntyre’s Critique of Human Dignity: A Response

Christopher McCrudden*

This article is based on the 13th Richard O’Sullivan Memorial Lecture delivered May 26, 2022 at the University of Notre Dame (UK) London. This unedited original text was shared with the Journal in conjunction with Volume 14, Issue 3, which showcases scholarship from London Law Programme professors. Thank you Professor Michael Addo for sharing this lecture with the Journal.[1]

Introduction

We live in a divided world. Divided by nationality, divided by race, divided by religion, divided over gender, climate change, Brexit, and globalization. Perhaps it was always thus but disputes on these and other issues seem particularly strident, angry, extreme, and uncompromising. We seem to be increasingly unable to identify principles and values that are ‘owned’ by both sides. Values like ‘equality’, ‘democracy’, ‘freedom’, ‘autonomy’, ‘community’, ‘solidarity’, ‘faith’, appear increasingly toxic to one political grouping or another. ‘Human dignity’, almost alone (I say, almost, because ‘love’, perhaps, is another), still seems mostly to have escaped that toxicity, at least for now. No group has yet captured it and holds it as its own. And it won’t have escaped your notice, I’m sure, that references to ‘dignity’ have proliferated in recent years: in the media, in politics, in protest movements, and in the academy – in law, philosophy, theology, history, and political theory. But is this use of ‘human dignity’ fundamentally flawed?

Alasdair MacIntyre, the well-known philosopher and author of After Virtue,[2] among other highly influential works, has set the cat among the pigeons in his lecture ‘Human Dignity: A Puzzling and Possibly Dangerous Idea?’.[3] The lecture was the keynote address at the Fall 2021 conference on human dignity organised by the de Nicola Centre for Ethics and Culture at Notre Dame University[4] and has attracted a lot of attention since then, particularly among Catholic intellectuals in United States.[5] MacIntyre’s status as a leading philosopher, his influence on Catholic thought, the setting for the lecture, and the challenge that his scepticism concerning human dignity poses for a human rights system that has long accorded the concept of human dignity a foundational role, mean that we should take MacIntyre’s intervention seriously.

Before trying to summarise MacIntyre’s argument and sharing some thoughts on it, I should enter some caveats. First, I am not trained as a philosopher or as a theologian but as a lawyer, albeit one who has been struggling with the concept of human dignity as understood in these other disciplines for some years.[6] Second, I shall not attempt to place his lecture on human dignity in the context of MacIntyre’s complete works; I shall take his human dignity lecture as a standalone piece of work. Third, the version of the lecture which he gave appears to be publicly available only on YouTube and not (yet) in printed form. It is therefore unsupported by the type of scholarly references that give a clearer indication of what the author was intending. I apologise in advance, therefore, if I have misunderstood his argument at any point.

Intellectual context of MacIntyre’s argument

My understanding of MacIntyre’s lecture is influenced by the continuing contemporary debate about human dignity and human rights. There are at least four features of the intellectual context in which his lecture is situated that it will be useful to keep in mind when considering his argument: the growth of human rights scepticism; the choice between adopting a practice-dependent or a practice-independent method of seeking the normative justification for human rights; the resort to ‘human dignity’ as a response to that scepticism, elevating it to become a central element in the normative justification for human rights; and the debate over whether ‘human dignity’, seen as foundational in this sense, should be considered ‘intrinsic’ to what it means to be human, or is something attributed to (some) humans. Once this complex context is identified, we can then move on to set out the gist of what I understand MacIntyre to be arguing, and how we might respond to it.

Human Rights Scepticism

It will not have escaped readers’ attention that there has been a rise in what can be called ‘human rights scepticism’. We used to speak of an ‘age of rights’ which lasted from the 1960s to the 1990s, an age when human rights were seen as coming of age and ushering in a new way of doing politics after the horrors of the Second World War. In 1987, Noberto Bobbio, the famous Italian philosopher of law and political sciences and a historian of political thought, identified rights as a critical development in the evolution of the modern state. This evolution involved the shift from ‘the duties incumbent on a subject to the rights a citizen can demand’. ‘Politics, he wrote, are no longer viewed primarily from the sovereign’s point of view but more from that of the citizen ….’[7] Or consider Louis Henkin, the doyen of American international human rights scholars in 1990: ‘Human rights,’ he wrote, ‘is the idea of our time, the only political-moral idea that has received universal acceptance.’[8]

Whatever the truth of these statements when they were written, they are clearly not correct in our own age, as we witness the growth of human rights scepticism. From the Millenium onwards, my bookshelves are increasingly filled with books with titles that capture the changing Zeitgeist.[9] And at the level of practical politics, politicians increasingly see the expression of human rights scepticism as a vote winner, and here President Trump has been seen as providing a prime example.[10] But Trumpism’s ideological opposition to human rights was not just opportunistic but hard-wired, and appears to reflect the coming together of a set of separate views:[11] an economic nationalism that views human rights as the normative wing of economic globalization and therefore to be opposed; a ‘Realist’ understanding of the state, in which human rights are seen as unacceptable political globalism; a toxic base which views human rights as ‘political correctness gone mad’, to use the rhetoric of popular journalism; an (unintentional) post-modernist approach to ‘truth’, in which human rights ethics and constraints on power conflicts with relativism and the worship of the exercise of power as an end in itself; and lastly, a sovereigntist celebration of American exceptionalism, leading to a calculated attack on international human rights institutions.

It would be inaccurate, however, to identify Trumpism as unique in this respect. We see the rise of human rights scepticism in Latin America, where (as Payne puts it), ‘right-wing ideology focuses on rights that are bestowed only on those who ‘prove’ their value.[12] And it would be remiss of me not to mention the discussion leading to the proposed UK Bill of Rights, in which human rights scepticism (or perhaps more fairly, scepticism of European human rights), has contributed to the evolution of a position that reflects both some of the elements of Trumpism, and Payne’s understanding of Latin American right-wing ideology.[13] It would also be unfair to give the impression that the growth of human rights scepticism is purely a right-wing phenomenon. It is not, and we see the growth of human rights scepticism from the Left. The work of Samuel Moyn is a good example. In a series of books, he pours cold water on the progressiveness of human rights, arguing that its origins are to be found in conservative Christian Democracy,[14] and its effect is to divert attention from necessary redistributive measures.[15] Human rights scepticism appears to be a phenomenon that has the ability to bridge the usual right-left and global north-global south divides.

Practice-dependent and practice-independent theorising

Defenders of human rights face the challenge of meeting this scepticism head-on. Various strategies have been attempted, but one question has come to dominate serious academic debate in recent years: Is there a convincing normative justification for human rights? And, if so, what is it? Faced with this question, human rights theorists returned to first principles, and more precisely to examining the moral justification of human rights, and their accompanying obligations, from a non-utilitarian perspective.

At the risk of severely over-simplifying a complex debate, one of the preliminary problems faced by those seeking to identify such a normative justification, is how to go about answering the question. Two approaches are current among philosophers: what has been identified as practice-dependent theories,[16] e.g. that adopted by John Rawls,[17] and practice-independent theories, e.g. that adopted by James Griffin.[18] The difference, again over-simplifying, is that practice-dependent theories attempt to theorise from the existing practice of human rights (bottom-up, as it were), whilst practice-independent theories are top down, engaging in conceptual analysis and what has been termed ‘intuition-pumping’ by Daniel Dennett,[19] attempting to focus attention on what is most important without getting bogged down in irrelevant detail.

Both approaches have to deal with several features of the actual practice of national and international human rights, but practice-dependent theories face particular challenges. First, since human rights actors themselves sometimes conceptualise human rights themselves in practice-independent ways (drawing on natural law, for example), a normative theory will need to be able to integrate such ‘orthodox’ approaches into human rights practice. Second, since human rights practise is conducted in and through institutions, the institutional contexts in which human rights are interpreted and applied needs to be recognised. Third, there is a significant pluralism in the ways different subsystems of human rights interpret particular human rights, and this means that any practice-dependent theory has to account for this pluralism.

Role of human dignity as foundational

There is an additional challenge: to identify the function of human dignity in the human rights system, given how widespread the term now is in human rights texts and human rights discourse? There are several possible understandings of the relationship between dignity and human rights, with both thinner and thicker variations. In the thinnest approach, human dignity is viewed as simply coterminous with human rights. Human dignity, in other words, is simply a shorthand for the group of human rights currently identified and serves no independent function. In the thicker variation, human dignity is seen distinct from human rights, and, indeed, that it provides the basis for human rights in general. In this thicker approach, human dignity expresses a value unique to itself, on which human rights are built. It provides a general principle that may continue to generate more rights over time as its implications are better understood; where changes occur that give rise to new situations, the application of the general principle may provide a method of distinguishing appropriate from inappropriate claims for new rights to be recognised for the first time; human dignity may also become an important interpretative principle assisting the further explication, interpretation and application of the catalogue of rights generated by the principle.

In an important sense, human dignity has for some time been hiding in plain sight as the foundational principle, and in some ways it is peculiar that it took so long for the popular and scholarly opinion to catch on.[20] Particularly after 1945, human dignity is omni-present in the key international human rights texts, beginning with the UN Charter, being picked up in the Universal Declaration on Human Rights (UDHR) and from the mid-1960s being included in every new international human right convention of which I am aware. We see human dignity also in important post WWII constitutions, in particular, that of West Germany, as it then was. But human dignity is not simply a western concept, or one of the global north. There were more refences to dignity in the constitution of the DDR than in that of the GDR.[21] It is often central to post-colonial constitutions, think of South Africa. Post-Soviet constitutions embraced it, think of Hungary and the Czech Republic. It is central to current European constitutionalism, featuring in some of the key European Court of Human Rights decisions. The EU has, perhaps unsurprisingly, taken the German approach and made it central to its Charter of Fundamental Rights, a point not lost on the Court of Justice of the European Union where human dignity increasingly appears in judgments.

Intrinsic and attributed dignity

But identifying the function of human dignity as human rights’ foundational principle does not tell us what it means, and this meaning is now significantly contested. There are, broadly, two competing understandings. We need to distinguish between an understanding of human dignity as intrinsic to what it means to be human, as opposed to an understanding that regards human dignity as attributed to (some) persons or institutions. This distinction, between human dignity as ‘intrinsic’ and human dignity as ‘attributed’ has become central to current debates about what human dignity means.

For Daniel Sulmasy, for example, human dignity expresses: ‘that worth or value that people have simply because they are human’.[22] And we see this approach throughout the jurisprudence of human dignity. I was recently in Prague and found the Czech Constitutional Court referring to: ‘… the post-war change in the understanding of human rights (which found expression in, for example, the UN Charter or the General Declaration of Human Rights) …’[23]  And identifying … ‘the fundamental basis from which arises the interpretation of all fundamental rights, human dignity, which, among other things, forbids treating a person as an object. In this conception questions of human dignity are understood as a component of the quality of a human being, a component of his humanity.’[24]

As we focus on ‘intrinsic dignity’, however, we soon discover that, in practice, there are radically different conceptions of ‘intrinsic’ human dignity. These conceptions differ in several ways. For example: in their understanding of what the intrinsic worth of the individual human being involves, and its origins, with an important debate between those who consider intrinsic human dignity to have a metaphysical and those who consider it to have non-metaphysical origins, with metaphysical origins being frequently theistic (‘the image of God’) versus the non-theistic Kantian understanding. We see too that there are important debates as to what the implications of intrinsic dignity are. In particular, how far do we understand ‘human dignity’ as inviolable, and therefore impossible to remove or take away, and the related issue as to whether ‘human dignity’ not only creates obligations on others to treat me in a particular way, but also whether it imposes obligations on persons to treat themselves in a particular way, so called self-regarding duties, with important implications as to how to view sex work, for example.[25]

It is a common feature of debates as to the meaning of human dignity, that the more we attempt to pin it down, the more opposition it garners, and several objections to intrinsic human dignity are now commonplace: one is that it involves non-secular claims about persons. For those who want to use a conception of human dignity that identifies an ‘inner kernel’ of value or worth,[26] the problem is how to do so in a way that can appeal to public reason and is not dependent on a religious or quasi-religious understanding of the person. But there are also common objections to approaches that seek to justify ‘intrinsic’ dignity on the basis of the capacities that human are said to possess, with criticisms of capacities-based approaches emanating in particular from advocates of those with disabilities. Objections to self-regarding duties come, not surprisingly perhaps, from some feminist quarters, and from those who fear more generally a populist moralism pervading the application of human dignity in practice.

These debates have contributed to a growing popularity in resorting to ‘attributed’ dignity understanding of human dignity, with some seeing it as a more convincing alternative to the contested ‘inherent dignity’ approaches.[27] ‘Attributed’ dignity itself, however, has significant variations, with some emphasising virtuous behaviour as the way in which dignity is earned, others considering the idea of dignity as being concerned primarily with status and honour, whilst yet others view it as more closely related to ideas of respect and protecting one’s reputation. Article 10 of the Czech Charter of Rights is a nice example of this latter understanding of attributed dignity: ‘Everyone has the right to demand that his human dignity, personal honour, and good reputation be respected, and that his name be protected.’  

But even these understandings do not exhaust the way in which attributed dignity has been understood. Yet others view ‘attributed dignity’ as more concerned with protecting individuals from being treated as inferior, being subject to degradation and humiliation. The Czech court refers in one case to discrimination breaching ‘the right to human dignity’ because it rendered the victims de facto ‘second class citizens’, ‘stigmatises them and evokes an impression of their inferiority, essential otherness and apparently also even the inability to take care of children properly – unlike other persons.’[28] In another judgment. human dignity was used to ground a right to lead a ‘dignified life’. ‘The concept of human dignity,’ said the Court, ‘implies a positive obligation on the part of the government to ensure that these persons can live in an environment that meets their health and social needs.’[29]

We have seen that the idea of ‘intrinsic’ dignity has been subject to significant criticism but there are also multiple objections to ‘attributed’ dignity, even, for example, treating others with ‘respect’: that it may lead to moral populism, or to respect inflation, or that it is indistinguishable from mere ‘offensiveness’, or that it is potentially highly illiberal in suppressing freedom of speech. We need only remind ourselves of the common use of dignitarian arguments in support of no-platforming and so-called ‘cancel culture’. It is no exaggeration, in my view, to describe what is happening at the moment as a political battle over ‘human dignity’, both between intrinsic and attributed camps, and within each of these camps. We find these battles over human dignity in feminist thought, in Catholic thought, in post-colonial thought, in Liberal thought, and in right-wing thought. And the reason for these battles is fairly clear. Given the near iconic status of human dignity, capturing it for one’s own particular sectional interests, or to serve a particular ideology, is immensely valuable. Human dignity has become an important asset in contemporary culture wars.

MacIntyre’s Argument

With this context in mind, we can turn now to MacIntyre’s argument. As I understand his argument, MacIntyre adopts the distinction between ‘intrinsic’ and ‘attributed’ dignity, although on occasion his terminology may differ. In his terminology, intrinsic dignity becomes ‘constitutional dignity’, and ‘attributed’ dignity becomes dignity-as-merited. He contrasts the understanding of dignity as attributed/merited from the post-WWII adoption of an intrinsic/constitutional understanding of human dignity, in particular in the post-WWII constitutions, such as in Germany. The development of constitutional/intrinsic dignity was designed to secure rhetorical agreement among individuals and states that did not in fact agree, but this could only be achieved through a lack of substance. And this becomes a broad theme of his lecture: that ‘intrinsic’ or ‘constitutional’ dignity is, of necessity a vacuous concept (my term, not his). He describes the lack of work that, he considers, dignity does in the interpretation of Post WWII constitutions. The part that ‘dignity’ plays in the ‘actual workings’ of the legal system of those states he describes as ‘negligible’; the constitutional uses of dignity ‘do not provide standards by which courts of law can determine whether or not some violation of human dignity has occurred’; nor do they provide legislatures ‘with some way of deciding how right-conferring laws can be formulated.’

For MacIntyre, the better view is that dignity is not a constant possession (‘intrinsic worth’) but something to be achieved and safeguarded. Rather possessing an intrinsic dignity that cannot be lost or given away, MacIntyre argues for the view that humans can lose their dignity when acting against their ‘proper end’ or purpose. What, then, is it that distinguishes humans from all other animals? At this point, he adopts a teleological and naturalistic understanding: The proper end for humans is the ‘end to which [humans] are directed by their nature. That end is to know and to love God. It is from the dignitas of their end that human beings derive their own worth, their dignitas.’ For MacIntyre, to be directed towards our final good (which is God), is also to be directed towards a set of other goods. Crucial among these are the common goods we share with others and achieve only through our relationships in and through these others. Whether we do direct ourselves to our own final end and towards the achievement of our common goods through which we move towards our final end is up to us. However, if and insofar as we fail to direct ourselves towards our final end, we lose our worth, our dignitas. ‘No one,’ he says at one point, ‘any longer has reason to treat us as possessing human worth.’ And he attributes this view to Aquinas, whom he quotes as writing that: ‘A bad human being is worse than a non-human animal. Bad human beings no longer deserve to be treated as rational human animals.’

We should ‘respect’ others who do qualify, however. So, what is involved in showing ‘respect’ to another individual? If I respect you, I will not … enslave you, gratuitously harm you, kill you unjustifiably, insult or humiliate you, arbitrarily discriminate against you, and I will consider you arguments carefully if we disagree. But if this is what ‘merited’ or ‘attributed’ dignity requires, there are other better justifications than dignity for behaving in this way. The problem with dignity as respect, he suggests, is that it is almost entirely negative in its implications. Instead of dignity as respect gained due to acting to further one’s proper ends, justice is a superior guiding principle, with its demand to render to others their due. What is due to someone is what they are due as parent, teacher, child, buyer or seller; in other words, the role and status they have. Nothing, he says, is owed to individuals as such, except that no-one is to be excluded from social relationships. ‘Justice is prior to and independent of, and much more important than, any appeal to human dignity.’ If justice requires rendering to others their due, then society too has obligations. These obligations are to assist individuals in securing the means required to become all that they might be and so attain or preserve their dignitas.

Dignity is dangerous, he says. It stunts our moral lives and involves mostly wholly ‘negative’ obligations as to how we should behave. He associates dignity as closely tied to liberal individualism: ‘Dignity,’ he says, ‘is the sham culmination of western humanism because it carries within it a shocking indifference to others. It is an asocial concept, an ideological tool of liberal commercialism’. He gives two examples to illustrate his point, one to do with slavery, the other abortion. It’s not enough to argue for the dignity of the unborn as having intrinsic dignity if the economic and social conditions of our society make it difficult for them to maintain their dignity after they’re born. So too, dignity requires that we should free the slaves, but not how they are to survive afterwards. Dignity (here is an echo of Moyn, perhaps) ignores the need for solidarity and the type of redistributive policies that justice would demand.

Critique of MacIntyre’s Argument

An important flaw in MacIntyre’s argument, in my view, is conceptual and concerns the relationship he posits between justice and human dignity. You will remember that he claims that justice requires that individuals should not be excluded from social relationships. But why should someone not be excluded in this way? Implied in any conception of justice, surely, is an understanding of why we should treat this, or any other, individual with justice. The answer, I suggest, contrary to MacIntyre, is that it is because each has worth and value. You remember, too, that he suggests also that justice requires that individuals be treated according to what is due to them and that this essentially depends on what role they perform in society. But justice can’t simply be defined according to some contingent group membership, otherwise how do you condemn the idea of ‘justice’ in a Nazi regime that treats individuals according to their status (as Jews)? Can ‘fascist justice’ be regarded as ‘justice’? I suggest that MacIntyre’s communitarian understanding of justice has severe problems. Human dignity, as I see it, conceived as the worth of humans, is prior to justice and is an intrinsic part of any concept of justice.

Relatedly, let’s recollect MacIntyre’s adoption of the view that we can lose our dignity if we fail to direct ourselves towards our final end, with the consequence that ‘[n]o one any longer has reason to treat us as possessing human worth.’ On first hearing, this is a shocking statement, and it doesn’t become any more palatable on subsequent hearings either. Indeed, for me, that is the most dangerous approach to dignity that I have heard for some time. It appears to give a licence to treat some persons as worthless, and it chimes with an earlier statement by MacIntyre in his lecture that he would not consider that evil people such as Hitler retained any human dignity. The idea that all constraints are off the table as concerns any person, even a Hitler, I find to be anathema. Perhaps I’ve misunderstood. I hope so.

The second major problem with his thesis, in my view, derives from his empirical understanding of the uses to which the concept of human dignity is put in practice. Although he does not explicitly detail his methodology, it seems clear that he adopts, at least in part, what I have termed earlier a ‘practice-dependent’ approach to his task of critiquing human dignity. And we have seen earlier that conducting a practice-dependent inquiry brings with it the obligation to engage with the actual practice of human dignity. MacIntyre’s failure to do so in either the depth, the breadth or the accuracy required is at the heart of remaining problems I want to identify.

Before doing so, however, I should admit to some sympathy for parts of his empirical analysis, if he were to have confined his critique of the practice of human dignity solely to its use in the United States. In that case, there would, indeed, have been some support for MacIntyre’s assertions. In American constitutional jurisprudence, it would not, I think, be unfair to suggest that it has come to be used as a rather unsophisticated alternative to ‘autonomy’ or personal liberty of a significantly individualistic kind, and if MacIntyre had confined himself to the American uses of dignity, I might have had quibbles but little more. But he does not. His critique of human dignity in its ‘constitutional’ and ‘intrinsic’ form is not confined to the United States, as we have seen. It appears to be a critique of the concept in general, not of one particular country’s use of it. Given its ambitions, therefore, his discussion of the actual use to which ‘intrinsic’ or ‘constitutional’ dignity is put is, I’m afraid, of considerable importance, but unfortunately it is of questionable accuracy.  In the following paragraphs, I will set out the several ways in which this is the case, in my opinion.

You will remember, first, that he argues that the constitutional uses of dignity ‘do not provide standards by which courts of law can determine whether or not some violation of human dignity has occurred.’ Nor do they provide ‘legislatures with some way of deciding how right-conferring laws can be formulated.’ Both of these assertions are highly questionable. Human dignity has provided one of the core guiding principles underpinning the abolition of capital punishment at the constitutional level in South Africa,[30] and the restrictions that many states such as Canada place on the ability to extradite criminals to states that continue to operate the death penalty.[31] Human dignity has provided a key basis for challenging torture or torture-like practices in interrogation (think of the Israeli Supreme Court decisions regulating the interrogation practices of the Israeli security services).[32] Human dignity has played an important role in securing LGBT rights in Ireland in the context of its same-sex marriage referendum.[33] Judicial and legislative use of human dignity is apparent in cases as distant from each other as physician-assisted suicide in Canada,[34] the use of lethal force by the security forces in Germany,[35]the treatment of corpses in India,[36] sexual harassment in Europe,[37] and modern slavery in Brazil.[38] In all these cases, the courts have frequently drawn on human dignity to guide and influence exactly how rights should be interpreted.

Second, MacIntyre’s assertion that dignity is predominantly negative in its implications and that no ‘positive obligations’ are derived from it is also incorrect. We have already seen that the Czech court grounds a right to basic social care as based on the obligation of the state to ensure a ‘dignified life’. ‘The concept of human dignity,’ said the Court, ‘implies a positive obligation on the part of the government to ensure that these persons can live in an environment that meets their health and social needs’ (emphasis added). And the Czech court is far from being alone in doing so. The German Constitutional Court also derives extensive social rights from human dignity,[39] upholding limited criminalisation of abortion only when accompanied with strong positive obligations on the state to enact social protections for pregnant women.[40] The Court of Justice of the European Union, in the CG case, derived a positive obligation on Member States to provide for the minimum conditions to enable all to be able to lead a ‘dignified life’.[41] (Incidentally, an accusation that dignity ignores the need for solidarity also betrays a strange historical amnesia. Was it not Marx himself who identified the working-class movement of the 19th Century as based on a belief of the importance of dignity, hence ‘the dignity of workers’?)

Third, MacIntyre provides as an example of ‘attributed’ dignity what is included in the Preamble to the Irish Constitution of 1937, which he contrasts with the disfavoured adoption of ‘intrinsic’ dignity after 1945 in other constitutions. Indeed, he appears to regard the Irish constitutional use of dignity as exemplifying his preferred usage, not least in linking it to justice. But this reading of the Irish Constitution is highly questionable.[42] Leaving aside whether it reflects the current interpretation of dignity by the Irish courts, it does not reflect either the complex and nuanced drafting history of the Preamble. What emerges from this is the fact that there were diverse and diverging conceptions of dignity, both intrinsic and attributed, in play, with none predominating. On one reading of the history, the Irish Constitutional use of dignity was an early example of precisely what emerged after WWII in other constitutions.

Beyond that, however, the fourth problem with his argument is a general lack of attention to the pluralism of approaches to human dignity that we have identified, not just in these historical examples but currently. This lack of attention results in MacIntyre missing a critical function that dignity plays in practice. The pluralism of the meaning of dignity, the lack of resolution of what dignity involves, is an essential aspect of the human rights system. The role of ‘human dignity’ in this system is to provide the opportunity for dialogue between those who may see nothing else uniting them except their commitment to human dignity. This function of ‘human dignity’ as a ‘bridging concept’, if that is what it is, is a potentially precious asset in our divided world. Its attractiveness is not, repeat not, because the idea is empty or vacuous. To the contrary. The concept (as I hope to have shown) is full of meaning.

Its value as a bridging concept does not, then, derive from its supposed emptiness, but rather because of its depth. For ‘human dignity’ raises the most profound questions – questions that have exercised minds for centuries. In particular, what does it mean to be ‘human’ and to treat others (and even ourselves) as ‘human’? What are the rights and obligations that derive from this profoundly important understanding of our common humanity? And it requires consideration of these issues in a way that, to me at least, is profoundly democratic. For the focus on human dignity brings us back to fundamental questions that not only allow, but manifestly require, every person to be involved in answering. It both needs and recognises the dialogue over fundamentals which Pope Benedict advocated and which Pope Francis has bravely continued.[43] Both recognised that human dignity provides an important conceptual tool with which to engage in that dialogue on neutral grounds, so to speak.

That dialogue will be uncomfortable for many, not least my friends in the human rights movement itself, since human dignity can provide an important critique of rights as well as being foundational to them. Dignity has a habit of slipping its leash and biting the hands of those who seek to capture it for narrow sectional purposes, as the Catholic Church has discovered regarding its treatment of women and children in recent years. That is not something to be feared but to enthusiastically endorsed.

The function that human dignity plays, of providing the occasion as well as the need for dialogue, is built on a prior foundation. Why, after all, should we engage in dialogue with others? I mentioned in the previous paragraph the idea of our common humanity. But what is this based on? Surely, on the idea that we are, as the Universal Declaration of Human Rights says, ‘equal in dignity and rights’. And that is also based on one of the most profound intuitions of the Twentieth Century, that we have ‘intrinsic dignity’, in the sense that we are all valuable simply because we are human. No other reason is necessary. That simple but profound message is one that our own Twenty First Century cannot be allowed to forget. In times of de-globalization and world-wide disentanglement, in a period of global conflicts and war in Europe, such a concept seems both utopian but ever more necessary.

Conclusion

For the reasons I have suggested in this article, I do not believe that MacIntyre’s critique of human dignity is correct, and I hope my attempt to engage with his argument may, at the very least, stimulate a renewed debate over an extraordinarily important concept and its role in the contemporary world. What is at stake? Given that, as Rosen has argued, the Catholic Church (together with Kant) has been one of the major pillars of support for an understanding of ‘human dignity’ as intrinsic dignity in the contemporary world, there is quite a lot at stake. Indeed, were MacIntyre’s critique to become mainstream in the Catholic tradition – we should not underestimate the importance of the University of Notre Dame to American Catholic thought, or the importance of the United States Church to Church thinking globally -- this development would be of critical importance to the Catholic Church and to the world.  Internally, the Catholic Church’s use and understanding of intrinsic human dignity that it has supported, taught and promoted for the last 60 years (at least since Dignitatis humanae)[44] has provided the starting point for much of Catholic social teaching; were MacIntyre’s critique to be accepted, this would appear to me to require the substantial reinterpretation and reformulation of this social teaching. Externally, the understanding of human dignity as intrinsic has provided the foundation for the Church’s rapprochement with human rights, one that encourages a serious engagement by the Church with, and support for, the subsequent development of human rights in a way that is, in my view, beneficial to both. MacIntyre’s critique would further distance the Church from the human rights mainstream, and that would be unfortunate, not least because it would feed into the human rights scepticism that I identified earlier in this article, resulting in the further weakening of the protections that the vulnerable have come to rely on.

 
* Professor McCrudden was elected a Fellow of the British Academy in 2008, and elected a Member of the Royal Irish Academy in 2018. He has been professor of human rights and equality law at the School of Law, Queen’s University Belfast since 2011 and holds the visiting position of L. Bates Lea Global Law Professor at the University of Michigan Law School. He was formerly Professor of Human Rights Law at Oxford University (the first), and a Fellow of Lincoln College, Oxford. Specializing in human rights, he concentrates on issues of equality and discrimination, the relationship between international, European, and comparative human rights law, and most recently the effect of the UK’s withdrawal from the EU on the law and politics of Northern Ireland.

[1] A revised version was also presented at the de Nicola Centre, University of Notre Dame in September 2022. I am grateful to participants at both lectures for their helpful questions and comments.

[2] Alasdair MacIntyre, After Virtue (1981).

[3] Alasdair MacIntyre, ‘Human Dignity: A Puzzling and Possibly Dangerous Idea?’, November 12, 2021, available at: https://www.youtube.com/watch?v=q57wxXziKeQ.

[4] ‘I Have Called You By Name: Human Dignity in a Secular World’, November 11-12, 2021.

[5] Some examples: RJ Snell, ‘Justice, Dignity and Alasdair MacIntyre,’ Public Discourse: The Journal of the Witherspoon Institute, November 19, 2021, available at: https://www.thepublicdiscourse.com/featured/justice-dignity-and-alasdair-macintyre/#:~:text=As%20such%2C%20dignity%20is%20not,render%20to%20others%20their%20due; Jonathan Liedl, ‘Dignity’ as Dangerous? Alasdair MacIntyre and ‘the Power of the Catholic Intellectual Ecosystem’, National Catholic Register, November 19, 2021, available at: https://www.ncregister.com/blog/dignity-as-dangerous-alasdair-macintyre-and-the-power-of-the-catholic-intellectual-ecosystem. My attention was first drawn to the lecture during the course of an altogether fascinating discussion on Catholic Social Teaching at Kylemore, Notre Dame’s conference centre in the west of Ireland by Father Richard Finn of Blackfriars Oxford.

[6] I first began working on the idea of human dignity in the 2000s: Christopher McCrudden, ‘Human Dignity in Human Rights Interpretation’, 19 European Journal of International Law 655 (2008).

[7] Noberto Bobbio, The Age of Rights (1987), ix.

[8] Louis Henkin, The Age of Rights (1990), xvii.

[9] Some examples: Costas Douzinas, The End of Human Rights (2000); Lori Allen, The Rise and Fall of Human Rights (2013); Stephen Hopgood, The Endtimes of Human Rights (2015); Eric A Posner, The Twilight of Human Rights Law (2014)

[10] Jack Hassard, The Trump Files: An Account of the Trump Administration's Effect on American Democracy, Human Rights, Science and Public Health (2022).

[11] Kurt Mills and Rodger A Payne, America First and the human rights regime, 19(4) Journal of Human Rights (2020), 399-424.

[12] L Payne and A De Souza Santos, (2020). The Right-Wing Backlash in Brazil and Beyond. Politics & Gender, 16(1), 32 at 33.

[13] QUB Human Rights Centre Response to the Ministry of Justice’s Consultation Paper on Human Rights Act Reform March 2022, available at: https://www.qub.ac.uk/research-centres/human-rights-centre/FileStore/Filetoupload,1317483,en.pdf.

[14] Samuel Moyn, Christian Human Rights (2015).

[15] Samuel Moyn, Not Enough: Human Rights in an Unequal World (2018).

[16] The term used by Andrea Sangiovanni, Justice and the Priority of Politics to Morality, (2008) 16(2) Journal of Political Philosophy 137, 137-8.

[17] John Rawls, The Law of Peoples (revised ed. 2001).

[18] James Griffin’s major work on this topic was published in 2008 with the title, On Human Rights, 2008.

[19] Daniel C Dennett, Intuition Pumps and Other Tools for Thinking (2013).

[20] Christopher McCrudden, Human Dignity in Human Rights Interpretation, 19 European Journal of International Law 655 (2008) provides citations for the developments mentioned in this paragraph.

[21] Michael Bothe, The 1968 Constitution of East Germany: A Codification of Marxist-Leninist Ideas on State and Government, 17(2) American Journal of Comparative Law(1969), 268-291

[22] Daniel P. Sulmasy, O.F.M., ‘Dignity and Bioethics: History, Theory, and Selected Applications,’ in The President's Council on Bioethics, Human Dignity and Bioethics: Essays Commissioned by the President's Council on Bioethics (2008), available at: https://bioethicsarchive.georgetown.edu/pcbe/reports/human_dignity/chapter18.html.

[23] Czech Constitutional Court, Decision 2009/08/18 - I. ÚS 557/09 (Limitation of Legal Capacity), available at: https://www.usoud.cz/en/decisions/2009-08-18-i-us-557-09-limitation-of-legal-capacity, at paragraph 19.

[24] Ibid.

[25] S v Jordan and Others (Sex Workers Education and Advocacy Task Force (CCT31/01), 2002 (6) SA 642; 2002 (11) BCLR 1117 (especially judgment of Sachs and O’Regan JJ).

[26] The term is Michael Rosen, Dignity: its History and Meaning (2012).

[27] See, e.g. Michael Rosen, above fn. 26.

[28] Judgement Pl. ÚS 7/15 (2016), available at: https://www.usoud.cz/en/current-affairs/judgment-pl-us-7-15-the-simple-fact-that-a-person-lives-in-a-registered-partnership-should-not-be-an-obstacle-to-the-adoption-of-a-child.

[29] Judgement III. ÚS 1765/21 (2021), available at: https://www.usoud.cz/en/current-affairs/judgement-iii-us-1765-21-of-2-november-2021-right-to-accessible-social-care. 

[30] S v Makwanyane and Another, 1995 (2) SACR 1 (CC).

[31] United States v. Burns, [2001] 1 SCR 283, at paragraph 79.

[32] Public Committee Against Torture in Israel v. State of Israel H.C. 5100/94, H.C. 4054/95, H.C. 6536/95, H.C. 5188/96, H.C. 7563/97, H.C. 7628/97, H.C. 1043/99.

[33] Irish Human Rights and Equality Commission Policy Statement on Access to Civil Marriage February 2015.

[34] Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.

[35] Aviation Security Case, Bundesverfassungsgericht, First Senate of 15 February 2006, 1 BvR 357/05, especially paras 37 – 57.

[36] Allahabad Case, Civil Misc. Writ Petition No.38985 of 2004 (2009).

[37] P Petroglou, (2019) Sexual harassment and harassment related to sex at work: time for a new directive building on the EU gender equality acquis, European equality law review, 2019, 2, pp. 16-34

[38] Cristiana Paixao and Leonardo Barbosa, Perspective on Human Dignity: On Judicial Rulings Regarding Contemporary Slavery in Brazil, 44(2) Quaderni fiorentini per la storia del pensiero giuridico moderno (2015), 1167-1184.

[39] I Leijten, The German Right to an Existenzminimum, Human Dignity, and the Possibility of Minimum Core Socioeconomic Rights Protection, (2015) German Law Journal, 16(1), 23-48.

[40] 2 BvF 2/90, 2 BvF 4/92, and 2 BvF 5/92, May 28, 1993.

[41] Case C-709/20 CG v The Department for Communities in Northern Ireland, 15 July 2021.

[42] Christopher McCrudden, Where Did Human Dignity Come From?: Drafting the Preamble to the Irish Constitution, American Journal of Legal History, 2020, 60, 485–535.

[43] Christopher McCrudden, Benedict’s Legacy: Human Rights, Human Dignity, and the Possibility of Dialogue, in Marta Cartabia and Andrea Simoncini (eds), Pope Benedict XVI’s Legal Thought: A Dialogue on the Foundation of Law (2015), 165-184.

[44] Dignitatis humanae (Of the Dignity of the Human Person) is the Second Vatican Council's Declaration on Religious Freedom, 7 December 1965. 

Continuing the Conversation: The Law and Ethics of Cultural Appropriation

Dr. Felicia Caponigri, Professor Chidi Oguamanam and Professor Julia J. Osei-Tutu engage in a penned discussion on cultural appropriation. The below furthers the dialogue held during the Journal’s volume 12 Symposium on International and Comparative Approaches to Culture.

An Italian Style of Cultural Appropriation?

Felicia Caponigri, JD, PhD*

Introduction: The Complex of Cultural Appropriation in Italy

Cultural appropriation has been defined as “taking intellectual property, traditional knowledge, cultural expressions or artifacts from someone else’s culture without permission including ... dance, dress, music, language, folklore, cuisine, traditional medicine, and religious symbols.”[1] Central to the notion of cultural appropriation is a sense of belonging and implicit ownership, whether or not this ownership is recognized by the law. Something which belongs to one culture must be taken to another. In addition to a sense of belonging and implicit ownership, the scope of culture is also relevant for cultural appropriation. Culture is usually defined in terms of its relationship to a group: collective expressions reflective of collective values and relationships that may or may not be embodied in distinct material objects but are usually related to or involve material objects to some extent.[2] But culture’s links to a group necessarily raise questions about how we define the boundaries of a group, of a collective, and of a society. Scholars have debated whether these boundaries should be related to territory, for example,[3] and laws seeking to extend some sort of control or protection of culture to communities themselves naturally grapple with how to define groups,[4] often allowing the State to step in for a community that may be territorially defined but also susceptible to broader conceptions of cultural belonging. The latter option is perhaps best embodied in Italy’s complex statutory framework for the protection and valorization of cultural property.[5] The definition of cultural property under Article 10 of the statute allows the Italian State to steward or declare to be cultural property a number of tangible objects of different cultural values to different collectives, whether these collectives are connected to the Italian territory or not, whether the cultural interests are national or international, indicative of a universal cultural value.[6] In these circumstances, strict relationships between a collective, its culture, and tangible objects may seem to collapse.

The more complex, horizontal, and vertical relationships between collective cultural interest and tangible objects in Italy, whether that relationship is tangible enough to trigger the notion of cultural property[7] or is closer to a manifestation that triggers a notion of intangible cultural heritage,[8] makes discussions of “takings” that would fulfill a definition of cultural appropriation nuanced, to say the least. Indeed, at least one Italian scholar has sought to positively move the conversation surrounding cultural appropriation forward by re-thinking such takings as cultural translation.[9] And this leads to the primary questions of this brief reflection. What is cultural appropriation in Italian culture? In the Italian context, we see close relationships between source communities, the notion of Made in Italy, and Italian heritage brands. What can happen to cultural appropriation when a brand builds its brand heritage on a source community’s heritage? Does building brand identity on top of cultural identity lead to more ethical cultural exchanges, instead of cultural appropriation? Today, as Italian museums have embraced digitization and heritage, brands in Italy have increasingly built on their links to Italian cultural heritage; Italian luxury brands “taking” an image of an Italian cultural property or traditional craftsmanship from Italian communities, in part for their own commercial use, provide examples of what might be termed an Italian style of cultural appropriation. Examining such an Italian style might also lead to a renewed focus on contractual agreements and even, perhaps, licensing, in the cultural appropriation space, alongside considerations of the ethics of cultural exchange. At the same time, what looks like the use of licensing schemes to combat cultural appropriation, especially when in the public sphere, can raise problematic issues. What role does the Italian State, with its rich statutory body of law, administrative regulations, and case law for cultural property, have in policing cultural appropriation? Might unpoliced cultural appropriation in the Italian context lead to new forms of culture and even cultural heritage? If this is so, what role might other laws that support the creation of cultural expressions at the beginning of their life, play? What role might even negative spaces of the law,[10] beyond cultural heritage law or sui generis rules, play in a discussion about cultural appropriation? The analysis of an Italian style of cultural appropriation and the laws which enable it in comparison to U.S. laws might also lead to further opportunities to support ethical cultural exchanges in the shadow of cultural appropriation in the United States.

Fendi’s Hand in Hand: Collaborations when Brand Identity meets Cultural Identity

In the late fall of 2021, Fendi hosted an exhibition at its headquarters in the Palazzo della Civiltà Italiana in Rome. Called Hand in Hand, the exhibition was described as “a grassroots partnership with local artisans, one for each region, across Italy.”[11] Asked to re-interpret the iconic Fendi baguette bag, regional artisans used local practices and historic craftsmanship to alter the look of the bag and, fundamentally, the way it has traditionally been made since its creation by Silvia Venturini Fendi in 1997.[12] As one example, a Sardinian all-female cooperative, Su Marmuri, wove threads on looms in the “pibiones” weaving technique,[13] while the Bottega Intreccio in the Marche interlaced willow branches.[14] The exhibition was, in fact, the result of agreements with these artisans for the production of an exclusive line of limited edition baguette bags which could only be purchased through Fendi’s Client Advisor by appointment.[15] Far from an unprecedented opportunity to collaborate, Fendi cast Hand in Hand as part of its very brand identity: “[T]his exhibition showcases the time-honoured skills of Italian craftspeople whose specialties in the applied arts continue Fendi’s long history of reinterpreting this iconic shape.”[16] International acknowledgments of cultural heritage first instituted by UNESCO and incorporated into regional cultural heritage laws also played an important part in signaling synergies of the collaboration.[17] For its Sicily Hand in Hand bag made with intricate coral work, Fendi worked with Platimiro Fiorenza, recognized as a Living Human Treasure, and inscribed in Sicily’s own list of intangible cultural heritage in 2013.[18] Inspired by UNESCO’s Living Human Treasures Program, Fiorenza’s inscription is part of Sicily’s own recognition of the importance of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, within an independent Sicilian list of Living Human Treasures where “individuals, collectives, and groups who establish themselves as unique possessors or who are particularly qualified [in] technical, ritual-ceremonial, linguistic or expressive knowledge attributable to long-lasting cultural-historic processes” are inscribed.[19] “Takings,” which also build on public international and regional acknowledgments of intangible cultural heritage of significance, synergize brand identity and cultural identity thereby facilitating a successful contractual relationship and the production of new manifestations of regional intangible cultural heritage in Italy and tangible examples of fashion as part of cultural heritage. The Hand in Hand collaboration indicates an Italian style of cultural appropriation which might be closer to cultural exchange: one in which the knowledge and craftsmanship of source communities in Italy are uniquely included in the codes and DNA of a luxury brand in an ethical manner.

At times the acts of cultural appropriation which produce relatively new forms of cultural heritage can also thrive in a grey or even a negative space of the law, despite what we might at first think about the law’s importance in policing cultural appropriation. One of the artisanal workshops with whom Fendi partnered to represent the region of Lazio, Massimo Maria Melis, builds on the tradition of the eponymously named jeweler of incorporating ancient coins, as well as marble and glass, to create Etruscan and Roman style decorative works. Melis also incorporates artistic practices from the ancient world, including “gold-plated silver appliqué ‘bezel’ flourishes created with the lost wax technique and inlaid with hand-carved very rare marbles…[t]he bezels are made from a special ancient Roman technique called ‘granulatura’ that creates a motif around the bezel like a groove.”[20] The ancient techniques used by Melis might at first be of interest as cultural practices inherited from our past that operate in a negative space of the law. While technically part of our intangible cultural heritage, they are, like some of the other practices at the heart of the re-interpreted baguette bags, not necessarily subject to the safeguarding requirements in the 2003 Convention, allowing them to be very freely built upon by Melis. The tangible ancient coins Melis uses are of even greater possible interest. Ancient coins have proven to be at the forefront of disagreements about what counts as cultural property between the museum space and the market and when cultural property, in its tangible form, can be “taken.” Ancient coins are classified under art 10 of the Italian Cultural Property Law as cultural properties.[21] These coins can be classified as cultural property either as part of collections of coins of exceptional interest[22] or individually because they are rare or precious when evaluated in light of their links to a particular era, technique or manner of reproduction or place of origin.[23] Ancient coins, when found underground are also, in Italy, part of the archeological material that, by operation of law, belongs to the State.[24] At the same time, ancient coins which are not rare or precious and have been in circulation for quite some time may not be cultural property. As coins are easily exchanged and transferred, they have become a flash point for collectors who argue against their classification as cultural property when these coins are imported to the United States from source countries and end up being seized under laws actuating States’ obligations under the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.[25] The ancient coins Melis uses as part of its contemporary use of ancient techniques are usually not of sufficient rarity and preciousness to be cultural property, but Melis’ production methods still respect the unique forms of the coins they use as part of their continuance of ancient Roman jewelry techniques and the workshop’s own contemporary methods. The very “taking” of objects which could be cultural property under different circumstances shows how some “takings” of tangible cultural property for use within separate cultural traditions and creative acts might lead to new forms of cultural heritage. In this case, cultural appropriations of tangible cultural properties that happen in a grey area of the law may result in objects and practices that might redefine our understanding of what is a “taking” between source communities and commercial actors.

Brioni and the David: A Dual Role for the Italian State in the Protection and Development of Culture

“Takings” of cultural property in Italy can also be intangible. In 2018 the Italian luxury menswear brand Brioni created an advertising campaign to promote its Bespoke or custom-tailored product offering.[26] As part of the description of its product offering, Brioni, an Italian brand founded in Rome in 1945,[27] emphasizes the “art of [its] tailoring,” its “tailors as masterful artists” and the dedication of its “talented artisans.”[28]  The central piece of this advertising campaign was a video juxtaposing the sculpting of Michelangelo’s David and the sculpting practices associated with Carrara, Italy with the art and craftsmanship of making a Brioni bespoke suit.[29] The video culminated in the physical dressing of Michelangelo’s David in a Brioni bespoke suit, with evocative closeups and final touchups.[30] Far from a digital, computer-generated image, Brioni dressed a tangible reproduction of Michelangelo’s original David, now housed in the Galleria dell’Accademia, from a workshop for sculptors in Carrara.[31] The creation of this tangible reproduction had been done by the workshop for non-commercial ends, without interacting with the Galleria dell’Accademia or the Italian State through the Ministry of Culture. The use of the Carrara workshop’s reproduction by Brioni for its own commercial purposes had, in turn, been accomplished through contractual albeit gratuitous agreements.[32] To a common-law, U.S. audience, the reproduction of the David by the Carrara workshop and its use by Brioni seems perfectly legal. Indeed, the David, as a sculptural work, is firmly in the public domain and can be freely copied, whether digitally or physically, under both U.S. and Italian copyright law. The same is true for the practice of sculpting Carrara marble and the craft of tailoring- cultural activities which can be freely engaged in. In this sense, the practice of sculpting, the craft of tailoring, and the images of the David are similar to the cultural expressions or know-how of other source communities that find, because of requirements of originality, fixation, and notions of authorship, that their cultural practices fall into a negative space of copyright law.[33] Far from allowing private contractual agreements to operate in this negative space of IP, however, the Italian State sought injunctive relief against both Brioni and the Carrara workshop to halt the dissemination of this image of the David in a Brioni suit. Deploying articles 107 and 108 of the Italian Code of Cultural Property, the Italian State argued that such an image of the David was done without authorization. Implicit in their desire to have the David in a Brioni suit immediately removed was also the notion of decoro, or appropriateness of the uses of cultural property. Connected to preserving the truth within and integrity of the cultural property,[34] the harm of a loss of monetary benefits and perceived harm to the David itself were at the heart of the relief sought by the Italian State from the court. In short, to return more expressly to the cultural appropriation theme, the Italian State deemed the use of the image of the David by Brioni and the workshop in Carrara an unauthorized taking of an Italian cultural artifact whose use resulted in harm to the cultural artifact itself. Turning the tables of the parties usually at the center of a cultural appropriation debate, the Italian State effectively stepped into the shoes of a source community otherwise unable to control their own culture and heritage.

Complicating the turning of these tables was the response and arguments against appropriation by Brioni and the workshop in Carrara. In response to the allegation that they had reproduced an Italian cultural property illegally without authorization, the workshop emphasized the non-profit purpose of their activities, casting it in heritage terms. The workshop emphasized how it participates in the “educational formation of sculptors” and “valorizes the art of sculpture and the Italian artistic heritage.”[35] The workshop’s loan of the reproduction of the David to Brioni had, again, been done without any commercial compensation.[36] The purposes of the loan were for, in the workshop’s argument, “a service of the highest men’s fashion” which had not hurt the image of the David but had, in fact, enhanced it.[37] Brioni similarly emphasized, as part of its request that the Court dismiss the case, its very place at the “apex of international men’s fashion, [as] a spokesperson of Italian excellence.”[38] The luxury brand also emphasized that it is part of “the Kering group, which is particularly committed to the valorization of Italian cultural properties, having, for example, subsidized the restoration of the Boboli Gardens and the Santo Spirito Church in Florence and the Babuino Fountain in Rome, in addition to having given substantial donations to the Uffizi Gallery.”[39]

 Moreover, Brioni highlighted that the purpose of the Bespoke campaign which, much like Fendi’s Hand in Hand collaboration, was “to celebrate the artisanal abilities of Italy’s haute couture.”[40] Brioni ended this line of argument by emphasizing that its reproduction in this greater framework resulted in not a “mere reproduction of a cultural property” but an “autonomous creative re-elaboration” (a derivative work in U.S. terms) which was allowed and moreover protected under Article 4 of Italy’s Copyright Law.[41]

Brioni’s arguments in particular highlight what may be lost in certain circumstances when the Italian State polices the appropriation of what, in the United States, we would see as firmly in the public domain under copyright law. The creation of new cultural products or activities, like the fashion Brioni calls out, which build on established forms of cultural heritage might be undermined. This, in turn, might compromise our collective recognition, at a later date, that new cultural products and activities are, themselves, part of our cultural heritage. At times, copyright law might seek to support the creation of these new cultural products by extending a relatively small scope of copyright. When this is the case, the dual role of the Italian State as the protector of the inherent integrity and authenticity (the decoro[42] of cultural property) and a supporter of the development of culture (a role which is enshrined in Article 9 of the Italian Constitution),[43] becomes evident. With this dual role comes a need to balance State action depending on the specific circumstances of appropriation. Finding this balance is even more important when the parties we traditionally think of as at the heart of a cultural appropriation debate (source communities and brands) are reversed and the Italian State steps in for a source community.

Conclusion

Italian luxury brand goods might often be considered the bad actors in cultural appropriation debates.[44] At the same time, Italian luxury brands goods’ “takings” of cultural practices from source communities in Italy and their “takings” of tangible cultural properties and intangible images of cultural property in Italy also indicate cases that challenge our conceptions of cultural appropriation, and the roles which brands, source communities, and even the State play. At times, Italian luxury brands might participate in ethical cultural exchanges supported by contractual agreements and collaborations, as evidenced in Fendi’s Hand in Hand. Artisans in Italy who build on ancient traditions and cultural practices might successfully appropriate tangible cultural properties in the shadow of the law to create new forms of future cultural heritage. Luxury brand goods might do the same through their own intangible takings of cultural property, as in the Brioni case. Far from being a white knight in shining armor, the Italian State may, at times, further complicate instances of cultural appropriation and the creation of new forms of cultural heritage, and even ethical celebrations of heritage, as it seeks to defend culture for Italy. In this sense, the Italian State’s dual role as protector and promoter requires a deep and critical engagement with the facts of each cultural appropriation case and the parties involved. An Italian style of cultural appropriation might, in the end, not be cultural appropriation at all, but a more nuanced form of cultural exchange and translation. As cultural appropriation, in all its forms, remains a constant part of the creation, preservation, and valorization of culture, the Italian style will continue to provide case studies to analyze what are, and should be, the law and ethics for a continued cultural dialogue within the broader Italian community within and outside the Italian territory.

*Special thanks to the editors of the Journal of International & Comparative Law, including its Editor in Chief, Ms. Ijeoma Oti, and its Symposium Editor, Ms. Naomi Price. The author also thanks fellow panelists on the panel The Law and Ethics of Cultural Appropriation at the Journal of International & Comparative Law’s Symposium, International and Comparative Approaches to Culture, Professor J. Julia Osei-Tutu and Professor Aman Gebru as well as Professor Roger Alford. Any errors are my own.

[1] Win Gruenig, The illogic of cultural appropriation, JUNEAU EMPIRE (Mar.8, 2018) https://www.juneauempire.com/opinion/the-illogic-of-cultural-appropriation/ (definition by Susan Scafidi in the context of critiques of a wearable art show in which a design seemed to perpetuate Asian stereotypes). Other definitions of cultural appropriation, including those cited during the panel discussion for The Law and Ethics of Cultural Appropriation, as part of the Journal of International & Comparative Law’s Symposium on March 18, 2022, include power dynamics, hierarchies, and the taking by a dominant group of society. In the context of this contribution, we could certainly consider Italian fashion and luxury brands as dominant over source communities in Italy, although my contribution also attempts to think about hierarchies in terms of complex networks and not only strictly vertical relationships, as evidence by the David example discussed infra.  

[2] Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. Rev. 559, 561-562 (1995).

[3] See Kristin A. Carpenter, Sonia K. Katyal and Angela R. Riley, In Defense of Property, 18 Yale L. J. 1022 (2009) and a response to it Michael F. Brown, Culture, Property and Peoplehood: A Comment on Carpenter, Katyal and Riley’s ‘In Defense of Property’, Int’L J. Cultural Prop. 569 (2010).

[4] The Native American Graves Protection Act of 1990, 25 U.S.C. §3001-3013 defines Native American and Native Hawaiian in terms of biological lineage. See §3001 (9) "Native American" means of, or relating to, a tribe, people, or culture that is indigenous to the United States.

(10) "Native Hawaiian" means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. Additionally, it leans on the importance of “cultural affiliation,” which is defined as “a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group.” Id. The implication of cultural affiliation is that, for purposes of the repatriation of artifacts, sacred objects, or cultural patrimony reflecting Native American culture, “contemporary groups of Native Americans of diverse backgrounds who voluntarily associate together for some purpose or purposes [and are, therefore, not “culturally affiliated” under the statute] are not viewed as proper claimants under the provisions of the statute.” Francis P. McManamon, The Native American Graves Protection and Repatriation Act (NAGPRA) in Archelalogical Method & Theory: An Encyclopedia (Linda Ellis, ed.) (2000), available at https://www.nps.gov/archeology/tools/laws/nagpra.htm#:~:text=3001%2D3013)%20describes%20the%20rights,referred%20to%20collectively%20in%20the.  

[5] Decreto legislativo, 22 Gennaio 2004, n. 42, G.U. (Feb. 24, 2004) ALTALEX [hereinafter CODICE, D.L. n.42/2004].

[6] Id.

[7] Massimo Severo Giannini, I Beni Culturali [Cultural Properties] 31 RIVISTA TRIMESTRALE DI DIRITTO PUBBLICO [Trimester Review of Public Law] (1976).

[8] The Convention for the Safeguarding of the Intangible Cultural Heritage art.

2, Oct. 17, 2003, 2368 U.N.T.S. 42671, UNESCO MISC/2003/CLT/CH/14, http://portal.unesco.org/en/ev .php- URL_ID=17716&URL_DO=DO_TOPIC&URL_SECTION=201.html (implemented into to Italian law through art. 7-bis, CODICE, D.L. n.42/2004).

[9] Eugenia Paulicelli, Fashion and Race: Translating Cultures in Dapper Dan and Gucci in The Routledge Companion to Fashion Studies (2021).

[10] Christopher B. Sprigman and K. Raustala, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006) (coining the notion of a negative space of intellectual property law).

[11] Fendi, Hand In Hand, Introductory Text, Wall Label (image on file with author) [hereinafter Introductory Text].

[12] Id.

[13] Fendi, Hand In Hand, Sardegna Text, Wall Label (image on file with author).

[14] Fendi, Hand In Hand, Marche Text, Wall Label (image on file with author).

[15] For details on the Hand in Hand collection, see Fendi, Hand in Hand, https://www.fendi.com/ae-en/inside-fendi/hand-in-hand-homepage.

[16] Introductory Text, supra note 11.

[17] For perspectives on how the 2003 Convention and UNESCO’s programs for intangible cultural heritage have been implemented into Italian law at the State and regional level, see Periodic report no. 00925/Italy, Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Ninth Session, UNESCO Headquarters, (Nov. 24-28, 2014). See also Guidelines for the Establishment of National “Living Human Treasures” Systems, UNESCO, https://unesdoc.unesco.org/ark:/48223/pf0000129520.

[18] Fendi, supra note 15 (noting, in the “Sicily” section that the product was “[a] true work of art in silver and coral, crafted in Trapani by one of UNESCO’s Living Human Treasures.”); For a description of Sicily’s Book of Living Human Treasures, including a list updated in September 2013 upon which Platimiro Fiorenza appears, see REI Registro delle Eredità Immateriali, Regione Siciliana, https://www.regione.sicilia.it/istituzioni/regione/strutture-regionali/assessorato-beni-culturali-identita-siciliana/dipartimento-beni-culturali-identita-siciliana/altri-contenuti/REIS [hereinafter REI Registro delle Eredità Immateriali] 

[19] REI Registro delle Eredità Immateriali, supra note 18.

[20] Fendi, Hand In Hand, Lazio Text, Wall Label (image on file with author).

[21] Art. 10, CODICE, D.L. n.42/2004.

[22] Art. 10(3)(e), CODICE, D.L. n.42/2004.

[23] Art. 10(4)(b), CODICE, D.L. n.42/2004.

[24] Art. 91, CODICE, D.L. n.42/2004.

[25] For one such case involving the Cultural Property Implementation Act in the United States and the forfeiture of coins imported from Cyprus and China, see United States v. Ancient Coin Collectors Guild, 899 F.3d 295 (4th Cir. 2018).

[26] RG. n° 15147/2018, Tribunale di Impresa, Sezione Imprese, January 2, 2019 (opinion on file with the author).

[27] History, BRIONI, https://www.brioni.com/en/us/history.

[28] Art of Tailoring, BRIONI, https://www.brioni.com/en/us/art-of-tailoring.

[29] The video can still be viewed on the YouTube channel of the Miami menswear boutique Damiani. See Damiani Miami, Brioni Bespoke at Damiani, YouTube (Oct. 20, 2018)  https://www.youtube.com/watch?v=z83uTqHEzPI.

[30] Id.

[31] The company which owns this tangible reproduction describes itself as “promot[ing] the city of Carrara as a centre based on the extraction of marble and on sculpture, and run[ning] the Studi d’Arte and Cave Michelangelo project. The sculpture workshop is equipped for the creation of any stone work and the staff are specialists in the reproduction of classical statues as well as the creation of monuments designed by more contemporary artists. They also plan and carry out any kind of sculpture, architecture, mosaic design or restoration project.” See Company, Studi D’Arte Cave Michelangelo, https://www.studidarte.it/en/company/.

[32] RG. n° 15147/2018, supra note 26 (p. 2 of the PDF).

[33] Michael F. Brown, Can Culture Be Copyrighted? 39 Current Anthropology 193, 197 (1998).

[34] Lorenzo Casini, Riprodurre il patrimonio culturale? I "pieni" e i "vuoti" normative, 3 AEDON no. 1127-345 (2018).

[35] RG. n° 15147/2018, supra note 26 (p. 2 of the PDF).

[36] Id.

[37] Id. (p. 3 of the PDF).

[38] Id.

[39] Id.

[40] Id.

[41] Id. There is precedent in Italian courts for the reproduction of public domain cultural properties being held to be creative re-elaborations under Italy’s copyright law. See Cass., sez. 23 Aprile 2013 n. 9757 (It.) (holding a digital reproduction of an archeological skull which incorporated parts of the skull which could not be seen due to the skull’s placement in a grotto as only a hypothetical reproduction and that the hypothetical, or imagined, part made the work creative and, therefore, not illegal under articles 107 and 108 of Italian cultural property law and, moreover, a protected work under Italian copyright law). See also Emanuele Fava and Nicoletta Serao, “It’s not the gay coat that makes the gentleman”: The Court of Florence rules once again on promotional materials portraying the David by Michelangelo (all dressed up, this time) and misses a chance to “unveil” the meaning of cultural heritage reproduction, IPLENS, (Sept. 7, 2020) https://iplens.org/tag/brioni/ (for an overview of this case in light of the court’s decision in the Brioni case and other reproductions of Michelangelo’s David).

[42] Decoro is a legal notion under Italian cultural property law which refers to the integrity and authenticity of a cultural property, its dignity; it has also been understood as connected to the authenticity of a work and its ability to continue to share its “truth”. See Casini, supra note 34. Safeguarding this decoro allows the cultural property to continue to maintain its cultural interest. Decoro is generally understood as a legal notion which pervades the Code of Italian Cultural Property, although it can be expressly found in arts. 52 and 120, CODICE, D.L. n.42/2004.

[43] Art. 9 Constitutizione [Cost.](It.), https://www.senato.it/sites/default/files/media-documents/COST_INGLESE.pdf.

[44] See e.g., Any Lingala, Another Season, Another Cultural Appropriation Controversy, THE BUS. FASHION, (Feb. 27, 2018), https://www.businessoffashion.com/articles/opinion/op- ed-%E2%80%8Banother-season-another-cultural-appropriation-controversy (for descriptions of Gucci’s appropriation of a Sikh turban).

The Dynamics of the ‘Cultural Appropriation’ Debate

Chidi Oguamanam*

Introduction

Cultural appropriation elicits interest across multiple disciplines. Legal scholars broach cultural appropriation with trepidation due to the narrow fixation of the law on property, ownership, and different domains of rights, including definitional delineation of subject matter. Those considerations are not the priority of other disciplines, nor of stakeholders in culture. Law’s problem with cultural appropriation is complicated, especially at the intersection of intellectual property.[1] The latter is law’s mechanism for the allocation of rights across different contexts for the production of knowledge, which is fused with culture.[2] Intellectual property is implicated in cultural hierarchies of colonial relations of power in which cultural appropriation occurs, unmasking intricate inequities.[3] Those inequities reflect the vulnerability of the world’s Indigenous peoples and local communities (IPLCs), whose creativity and cultural productions constitute substantive targets of cultural appropriation.[4] This contribution draws from my work in intellectual property, Indigenous knowledge systems, and global knowledge governance. It is made on the background of the invitation to participate in the Notre Dame Journal of International and Comparative Law’s 12th Annual Symposium on International and Comparative Approaches to Culture. I am indebted to the fantastic editorial team and outstanding panellists who provided inspiration for this contribution.

Culture: Ownership and Scope

Culture is a universal phenomenon.[5] Its scope is unmarked because of its ubiquity and dynamism across all spheres.[6] It is the proverbial elephant, bearing the appearance of a magnified mouse yet hardly an object of comparison to a mouse; easy to identify, difficult to define.[7] Anthologists have been preoccupied with the debate over the ownership of culture.[8] In law, that debate revolves around the ethics and applicability of tools of appropriation to culture, with scholars pondering whether culture can by copyrighted,[9] patented, or made an object of trademark, designs, etc.[10]  The argument embeds the tension between the individual and the collective, and other social units; especially those on the “gray gradient.”[11] The discourse around culture spills over to value-laden judgment involving cultural relativism, sacralization, worldviews, belief systems, philosophies, and a vast range of human rights.[12]

Despite culture’s universality, the discourse about culture casts an imaginary divide between the culturally “neutral” and the culturally rich.[13] It is a dynamic that unravels the axis of cultural appropriation amplifying IPLCs, supposedly as the main custodians of culture and its prime stakeholders.[14] Nothing could be further from the truth, as Professor Caponigri argued in her intervention at the symposium.[15] This tendency unmasks the vulnerabilities of IPLCs, as historically colonized non-dominant civilizations, to cultural appropriation. The debate over the ownership of culture resonates inwardly within IPLCs, and at the interface of their relationships with Westphalian states.[16]  It is a site for contending with the agency of actors, including constituent socio-cultural units such as kindreds, families, elders, generational groups, and colonial states.[17] While there is a unity of resistance against cultural appropriation amongst IPLCs, there remains a rift over the legitimacy of claimant beneficiaries to cultural assets in variegated local settings and at international levels.[18]   

In law and related fields, the discourse of cultural appropriation is assailed by complex intersections.  From cultural artifacts and craftwork, tangible cultural property transcends human-made to nature-endowed.[19] Culture is also expressed thorough the vehicle of traditional or Indigenous knowledge systems, with their indefinable contours spanning medicines, phytomedicine, food, cuisine, fashion, agriculture, astrology, architecture, designs, etc. Perhaps culture’s compass is more extensive in the expressive and performative realms of rituals, ceremonies, languages, poetry, incantations, songs, music, choreography, and across all entertainment, creative, and folkloric repertoire.[20] These enumerations depict unrestricted sites for cultural production. However, the holistic worldviews of IPLCs defy cultural bite-sizing. For example, tangible cultural arts and crafts are often products made of genetic or natural resources.[21] In many cases, they are produced through sacred protocols, rituals, and ceremonies and in the context of immemorial and continuously refined practices between and across generations; transcending specific regimes into which intellectual property pigeonholes them.[22]

Aside from difficulty with intellectual property, the holistic process of knowledge creation and cultural production in many alternative worldviews, especially those within the realm of IPLCs, creates another conceptual rift. That is evident in the reference to aspects of traditional knowledge associated with genetic resources.[23] This is a hot button concept that links IPLCs, as traditional knowledge holders, who rely heavily on traditional uses of genetic, biological, and natural resources generally, with the cultural appropriation narrative in the bioeconomy.[24] The association of IPLCs knowledge with uses of natural resources engages multi-faceted disciplinary interests in the new life sciences, including biotechnology, the bio-digital applications, and emergent disciplines.[25] The conceptual faultline divulges in the underlying power play, in which biocultural productions of IPLCs in the use of genetic resources is moored on conventional intellectual property.[26] Intellectual property epistemically privileges Western scientific innovations at the expense of alterative epistemes.[27] This is consistent with colonial devaluation, and validation of the knowledge systems of the colonized on the colonizer’s Western scientific paradigm.[28] The failure of fitness for purpose of intellectual property in the Indigenous knowledge realm animates the biopiracy debate, which some skeptics dismiss as rhetorical.[29]    

Biopiracy, Misappropriation and Erroneous Patents  

Biopiracy was first coined by Canadian civil society activist, Pat Mooney,[30] reflecting a metaphoric extension of piracy as an act of forceful and illegitimate dispossession, but in this case of Indigenous knowledge. The ‘bio’ prefix underscores the foundation of knowledge and cultural production among IPLCs on the use of biological, and indeed variegated, range of natural resources.[31] Some analysts refer to those aspects of Indigenous knowledge as bio-cultural or ecological knowledge.[32]

 As a concept and analytical tool, biopiracy has traction with bioprospecting and biotechnology,[33] as associated with the bio-digital revolution.[34] The latter is a loose reference to the confluence in the use of complex digital instruments of information and communication technologies to exploit biological data and enhance the use of genetic recourses. Biopiracy is a resistance narrative against the tendency to categorise IPLCs as intellectual property free riders.[35] It describes the practice of unrequited exploitation of genetic resources found mainly in IPLCs’ ancestral homelands and associated Indigenous knowledge without their consent, attribution, or equitable accommodation of the interests of those communities.[36] Given the inchoate international and national contexts for delineating IPLCs in the biopiracy context, some prefer to refer to them as “source communities.”[37] That phrase is equally problematic as an echo of international or colonial division of labour whereof the colonized is valorized as the source of raw material for the colonizer.[38] In its narrow formulation and limitation to biocultural production and corresponding R&D innovation in the life sciences, biopiracy is associated with the patent regime of intellectual property.[39] Corporations, as well as R&D entities, are wont to obtain patents based on immemorial uses of endemic genetic resources and even associated Indigenous knowledge.[40] They leverage gaps in the patent system which is not designed to account for the modus operandi of Indigenous knowledge systems and their custodians.[41]

As a metaphor, biopiracy is no longer limited to the biotechnology and biocultural contexts of knowledge production or appropriation. It is now mainstreamed into the cultural appropriation conversation, beyond the biological and life sciences, beyond patents. It includes historic appropriation of cultural artefacts, animating the reparation and repatriation debates.[42] Biopiracy includes the abuse of Indigenous symbols through trademarks and all forms of deceptive marketing of goods and services associated with IPLCs and ‘pristine’ cultures and civilisations.[43] In  the diverse range of subject matters in which biopiracy is evoked as a metaphor of cultural appropriation, several regimes of intellectual property are implicated as facilitating appropriation.[44]

Despite their persuasive logic, biopiracy and cultural appropriation are not well-received concepts in a critical norm-setting forum on Indigenous knowledge and intellectual property: the WIPO-IGC.[45] The mention of biopiracy or misappropriation of Indigenous knowledge as among the raison d’être for the protection of Indigenous knowledge is loathed at WIPO-IGC by the big players in cultural appropriation.[46] The United States and other industrialized countries complicit in cultural appropriation prefer to anchor the justification for the protection of Indigenous knowledge on a “vibrant public domain” and the prevention of “erroneous grant of patents.”[47] This negotiating position denies accountability for cultural appropriation through abusive use of the intellectual property system.

Historically, the dubious relegation of Indigenous knowledge to the public domain has served the cause of cultural appropriation, systemically fostering the privatization of Indigenous knowledge and cultural properties through progressive expansion of intellectual property.[48] The US and colonial powers of the global North, as vested actors in cultural appropriation, champion a self-serving justification for the protection of Indigenous knowledge on the public domain logic.[49] Consequently, they now promote the use of digital and other information management systems to document Indigenous knowledge.[50] The putative objective of digitization of Indigenous knowledge is to prevent erroneous granting of patents on genetic resources and associated Indigenous knowledge. By implication, therefore, biopiracy is not acknowledged as an egregious act of cultural appropriation. Rather, it is reframed as an erroneous occurrence blamable on the undocumented nature of IPLCs’ knowledge of uses of genetic resources. The inversion of the logic of biopiracy underscores the asymmetric power relations that drive, manipulate, and consequently, undermine cultural appropriation.

Conclusion

The debate over cultural appropriation poses a conundrum at every turn and involves complex inequities in power relations. It ricochets against the continuing dynamic of colonialism and the subjugation of IPLCs. Perhaps the starting point is to engage with what constitutes cultural appropriation, and when and which forms thereof could be ethically permissible and on what terms. The pensive deliberations at the Symposium adequately resonate with these important priorities, setting the stage for exciting future research agends on an important interdisciplinary subject matter.         

*Professor, Faculty of Law, University of Ottawa (oguamanam.com, coguaman@uottawa.ca). Special thanks to Sarah O’Flaherty for dedicated research assistance. This contribution draws from my work in intellectual property, Indigenous knowledge systems, and global knowledge governance. It is made on the background of the invitation to participate in the Notre Dame Journal of International and Comparative Law’s 12th Annual Symposium on International and Comparative Approaches to Culture.  I am indebted to the fantastic editorial team and outstanding panellists who provided inspiration for this contribution.

[1] Rosemary J. Coombe, The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy, 6(2) CAN. J. L. & JURIS. 294-285 (1993) [hereinafter Coombe, Properties of Culture].   

[2] Chidi Oguamanam, Localizing Intellectual Property in the Globalization Epoch: The Integration of Indigenous Knowledge, 11 Ind. J. Global Leg. Stud. 135-169 (2004).

[3] Olufunmilayo B. Arewa, Piracy, Biopiracy and Borrowing: Culture, Cultural Heritage and the Globalization of Intellectual Property (Case Research Paper Series in Legal Studies, Working Paper No. 04-19, 2006),  https://www.readcube.com/articles/10.2139%2Fssrn.596921.

[4] Coombe, Properties of Culture, supra note 1.

[5] See, e.g., Emily E. Schultz & Robert H. Lavenda, Cultural Anthropology: A Perspective on the Human Condition (9th ed., 2013).

[6] There is virtually no human experience bereft of cultural elements and ramifications.

[7] From Africa to Asia, the elephant is subject of storytelling with mixed metaphors and morals. Those often provide lessons on human condition, and by extension, socio-cultural experience around the relativity as opposed absolutism of truth and the power of context as a moderator of perspectives. The most common of the fables is story of blindmen’s botched attempts to describe or identify an elephant from their different touch and feel of its separate parts.    

[8] See, e.g., Rosemary J. Coombe, Possessing Culture: Political Economies of Community Subjects and Their Properties, in Ownership and Appropriation 105-27 (Mark Busse & Veronica Strang eds., 2011) [hereinafter Coombe, Possessing Culture]; see also Michael F. Brown, Who Owns Native Culture? (2004), Susan Scafidi, Who Owns Culture? Appropriation And Authenticity In American Law (2005).  

[9] See Michael F. Brown, Can Culture Be Copyrighted? 39 Current Anthropology 193-222 (1998). 

[10] See generally Osei-Tutu, supra note 4; see also Brigitte Vézina, Curbing Cultural Appropriation in the Fashion Industry (CIGI Paper No. 213, 2019) https://www.cigionline.org/sites/default/files/documents/paper%20no.213.pdf.  

[11] See Coombe, Possession Culture, supra note 8. Some social units, such as family, kindreds, ancestral lineages or affinities, kingship stools and hereditary interests are often gray units in the contest for ownership of culture.   

[12] See Guyora Binder, Cultural Relativism and Cultural Imperialism in Human Rights Law, 5 BUFF. HM. RTS. L. Rev. 211-221 (1999).

[13] While there is no consensus over what constitutes the so-called dominant Western culture, its vestige and association with colonialism is often synonymized with Eurocentrism as a high cultural aspic from which to value and validate other cultures, practices, and civilizations. The West thrives in the agency of a presumed superior cultural norm based on a dubious hierarchy of power for negotiating identity in loose reference to otherness as an umbrella category constituting targets for cultural devaluation as well as appropriation. See generally Kathleen G. Roberts, Alterity and Narratives: Stories and the Negotiation of Western Identities (2007); Arewa, supra note 3; Chidi Oguamanam, Local Knowledge as Trapped Knowledge: Intellectual Property, Culture Power and Politics, 11 J. World Intell. Prop. 29-57 (2008) [hereinafter Oguamanam, IP, Culture & Power].  

[14] As largely colonized civilizations for IPLCs, colonialization is associated with cultural genocide or decimation through assimilation and eradication of their languages and legal traditions. That experience now hinges their survival and resurgence on the decolonization and cultural reclamation. See, e.g., Linda T. Smith, Decolonizing Methodologies: Research and Indigenous Peoples (3rd ed., 2021); see generally, John Borrows, Recovering Canada: The Resurgence of Indigenous Law (2017).   

[15] Felicia Caponigri, An Italian Style of Cultural Appropriation?, presented at The Notre Dame Journal of International & Comparative Law Vol 12 Symposium: International & Comparative Approaches to Culture.

[16] See Coombe, Possessing Culture, supra note 8.

[17] Id. See also Ikechi Mgeboji, Patents and Traditional Knowledge of Uses of Plants: Is Communal Patent Regime Part of the Solution to the Scourge of Biopiracy? 9 Ind. J. Glo. Leg. Stud. 163-186 at 183 (2001) [hereinafter Mgbeoji, Communal Patent]. (Argues that “bio-cultural communities” should define for themselves appropriate social or cultural units for legal personability to hold intellectual property rights. In the Australian “carpet case,” the Australia Federal Court recognized individual and custodial rights of an Aboriginal artist within the context of communal rights in a sacred cultural creation (carpet). See Millpurruru v. Indifurn Pty Ltd. FCA 975; 130 ALR 659 (1995).

[18] In many developing countries of the global South where the settler withdrew, such as India, Indonesia, and many African countries, states often lay claim to being direct beneficiaries of Indigenous knowledge and cultural properties as opposed to the situation in enclave territories (e.g., Canada, United States, New Zealand, Australia) of mainly the global North where the settler did not withdraw. In the latter situation, states are not direct claimants to Indigenous knowledge and indigenous cultural properties, even though such properties constitute components of national and cultural identity of some states.

[19] This is recognized through UNESCO’s world natural and cultural heritage sites as crucial aspects of civilizational repertoire pursuant to UNESCO-administered international conventions.   

[20] All of these and more are captured at the gamut of interests covered in U.N.E.S.C.O Convention for the Protection of the World Cultural and Natural Heritage, Nov. 16 1972, 1037 U.N.T.S. 15511, the U.N.E.S.C.O. Convention for the Safeguarding of Intangible Cultural Heritage, Oct. 17 2003, 2368 U.N.T.S. 42671, and the U.N.E.S.C.O. Convention on the Promotion and Protection of Diversity of Cultural Expressions, Oct. 20 2005,  2440 U.N.T.S. 43977, as well as related international agreements.  

[21] See Chidi Oguamanam, Wandering Footloose: Traditional Knowledge and the Public Domain Revisited, 21 J. World  Intell. Prop. 306-325 (2018) [hereinafter Oguamanam, TK & Public Domain].   

[22] Id.

[23] The self-explanatory title of WIPO’s special committee, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore [Traditional Cultural Expressions] [hereinafter WIPO-IGC] reflects the central role of genetic resources in the production of traditional knowledge and vice versa. The Committee is currently negotiating three track texts focusing on Genetic Resources, Traditional Knowledge, and Traditional Cultural Expression. 

[24] See Paul D. Oldham, Biopiracy and Bioeconomy, in New Genetics, New Social Formations 114, 129 (P. Glasner. P. Atkinson & H. Greenslade, eds., 2017). 

[25] Chidi Oguamanam, Indigenous Peoples Rights in Access and Benefit Sharing over Genetic Resources: Digital Sequence Information and a New Technological Landscape, in Handbook On International Laws Of Indigenous Rights (Dwight Newman., ed., (forthcoming 2022)).

[26] Id.

[27] Chidi Oguamanam, Pressuring ‘Suspect Orthodoxy’: Traditional Knowledge and the Patent System, 313-333 in indigenous intellectual property: a handbook of contemporary research (Matthew Rimmer, ed., 2015); see also Oguamanam, IP, Culture & Power, supra note 13.  

[28] Id.

[29] See, e.g., Paul Heald, The Rhetoric of Biopiracy, 11 Cardozo J. Int’l & Comp. L. 519-546 (2003-4).

[30] See Ikechi Mgbeoji, Global Biopiracy: Patents, Plants and Indigenous Knowledge, 12 (2006) [hereinafter Mgbeoji Global Biopiracy]; Chidi Oguamanam, Understanding African and Like-Minded Countries Positions at WIPO-IGC, 60 IDEA 386-549 at 401, n. 45 (2020) [hereinafter Positions at WIPO-IGC]; see also Graham Dutfield, What is Biopiracy?, presented at International Expert Workshop on Access to Genetic Resources and Benefit Sharing (2004), staff.unila.ac.id/priyambodo/files/2017/04/Biopiracy.pdf.     

[31] Id. See also Oldham, supra note 24.

[32] E.g., Mgbeoji, Communal Patent, supra note 17; see also Tabrez Ahmad, Soumita Adhikary & Ishani Das, Protection of Bio-Cultural Property in the Cradle of Traditional Knowledge (2010), https://dx.doi.org/10.2139/ssrn.1589687.    

[33] The Convention on Biological Diversity and its Nagoya Protocol adopts the same definition of biotechnology in Article 2 of their respective text as “any technological application that uses biological systems, living organisms and or derivatives thereof to made or modify products or processes for specific use. Bioprospecting refers exploration of biological resources for their economic or commercial uses.” See Convention on Biological Diversity, 1760 U.N.T.S. 79 (1992); 31 I.L.M. 818 (1992); Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, UNEP/CBD/COP/DEC/X/1 (2010).

[34] More generally referred to as the bio-revolution.   

[35] See Oldham, supra note 24; see also Dutfield, supra note 30.

[36] See generally Mgbeoji, Global Biopiracy, supra note 30; see also Daniel F. Robinson, Confronting Biopiracy: Challenges, Cases and International Debates (2010).

[37] See Aman Gebru, The Law and Ethics of Cultural Appropriation Presented at The Symposium, supra note 4; see also Aman Gebru, The Piracy Paradox and Indigenous Fashion, 39 Cardozo Art & Ent’ment L. J. (2021), https://ssrn.com/abstract=3908765, (characterizing Indigenous fashion producers as part of source communities for Indigenous knowledge).  

[38] See e.g., V.A. Gaitonde, Developing Countries and International Division of Labour, 3 SOCIAL SCIENTIST, 3-26 (1974); see generally, James H. Mittleman, Rethinking International Division of Labour in the Context of Globalization, 16 Third World Quarterly 273-295 (1995); Philip McMichael, Development and Social Change: A Global Perspective (7th ed., 2021).    

[39] See generally Mgbeoji, Global Biopiracy, supra note 30; Daniel F. Robinson, supra note 36. One of the contentious issues at the WIPO-IGC is whether the protection of genetic resources and traditional knowledge associated with genetic resources is through an international instrument framed within the broader intellectual property system, or the narrower patent system. While many developing countries favour a protection framework from the broader patent system, the United States, the EU, and their allies, including Japan and South Korea, favour a narrower framework of protection through the patent system. See e.g., infra note 47 and accompanying note.

[40] Consider, for example, most cases of global biopiracy canvassed in Robinson, supra note 36; Mgbeoji, supra note 30; Oguamanam, supra note 30.

[41]  Consider, for example, two of such gaps revolve around novelty and documentation (writing). Indigenous knowledge is perceived as continuous stream of knowledge transmitted across generations from immemorial whereof its novelty is hard to determine. That problem is also linked the folkloric essence of Indigenous knowledge as orally transmitted without writing or documentation, which is necessary, among other things, to determine novelty or establish priority of “the art.” Those factors are decisive for the grant of patent.     

[42] See Paul Wood, Display, Restitution and World Art History: The Case of ‘Benin Bronzes’, 13 Visual Art In Britain, 115-137 (2012); A.A. Adewunmi, Return of Cultural Property to Countries of Origin and the Emerging Issues, in LAW AND POLICY THOUGHTS IN NIGERIA, 301-323 (Adeniyi Olatunbosun, ed., 2018); Sara Ross, Res Extra Commercium and the Barriers Faced When Seeking the Reparation and Return of Potent Cultural Objects: A Transsystemic Critical Post-Colonial Approach, 4 AM IND. L. J. 297-39 (2016).  

[43] See e.g. Chidi Oguamanam, WIPO-IGC 39: Unraveling the Tiered Approach to TK/TCES (ABS Canada, Mar. 5, 2019) https://abs-canada.org/wipo-igc-39-unraveling-the-tiered-approach-to-tk-tces/; Stephanie B. Turner, The Case of Zia: Looking Beyond Trademark Law to Protect Sacred Symbols (Yale Law School Library Scholarship Repository) https://core.ac.uk/download/72831469.pdf (both spotlighting the controversy and suitability of the use of trademark to protect the Zia Sun Symbol, highlighting the tension between the State of New Mexico and the Zia people based on the uses of the Zia symbol); see also Osei-Tutu, Venzina, supra note 10 (on biopiracy in the fashion industry); see generally, Rosemary J. Coombe, The Cultural Life of Intellectual Property: Authorship, Appropriation and the Law (1998).

[44] Ironically, intellectual property regimes, including those emergent and on the fringes, are associated with the potential to redress the injustice of biopiracy. This is part of the reason for the interest in a sui generis system of intellectual property, one that is designed to accommodate the idiosyncrasies of Indigenous knowledge systems. See e.g., Michael Hallewood, Indigenous and Local Knowledge in International Law: A Preface to Sui Generis Intellectual Property Protection, 44 MCGILL L.J. 953-996 (1999); see also Mgbeoji, Communal Patent, supra note 17.   

[45] See supra note 23 (for IGC); see also supra note 39 and accompanying text.   

[46] See infra note 47.

[47] One of the key objectives of the protection of traditional knowledge relating to genetic resources as captured in the heavily bracketed Draft Genetic Resources Text of the WIPO-IGC’s Article 2 is to ensure … [“that [IP] [patent] offices have access to appropriate information on genetic resources and traditional knowledge associated with genetic resources to prevent erroneous granting of [IP] [patent] rights”]. See The Consolidated Document Relating to Intellectual Property and Genetic Resources -Rev 2 WIPO/GRTKF/IC/35/REF/FACILITATORS TEXT REV. 2 (2018).  Similarly, Article 2 of the objectives text of The Protection of Traditional Knowledge Draft Articles from the WIPO-IGC 40 (June 19, 2019), which is identical provision in the TCEs text of same date, provides in Alternative 3 (b) and (c) to the effect that the objectives include to “support appropriate use of traditional knowledge within the patent system … (b) recognizing the value of a vibrant public domain, the body of knowledge that is available for all to use and which is essential to creativity and innovation, and the need to protect, preserve and enhance the public domain, and (c) preventing erroneous grant of patent rights over non-secret traditional knowledge]]”. See WIPO/GRTKF/IC/40 (June 19, 2019). For the most part, the United States and its ally Japan are core proponents of the above alternative objective texts. They also resist the reference to “misappropriation” or “biopiracy” in the objectives or even the preambular text of the emerging IGC instruments which remain a work in progress.

[48] See Oguamanam, TK & Public Domain, supra note 21; see also Ruth L. Okediji, Traditional Knowledge and the Public Domain (CIGI Paper No. 176, June 2018),  https://www.cigionline.org/sites/default/files/documents/Paper%20no.176web.pdf. On the expansion of intellectual property and the erosion of the public domain, see generally Peter K. Yu, The International Enclosure Movement, 82 IND. L. J. 827-907 (2007); James Boyle, The Second Enclosure Movement and Construction of the Public Domain, 66 l. & contemp. Probs. 33-74 (2003); James Boyle, The Public Domain: Enclosing the Commons of the Mind (2008).

[49] Oguamanam, TK & Public Domain, supra note 21.

[50] This is often explored as digitization, documentation of traditional knowledge, traditional knowledge recording system or traditional knowledge databases as part of both defensive and proactive protection of traditional knowledge for proof of prior art to prevent dubious or biopiracy patents. India’s Traditional Knowledge Library is cited as the most prominent example. There is skepticism regarding the paucity of expertise, high cost of these recording processes, and potential for the database project to result in a counterproductive outcome rendering traditional knowledge more vulnerable to exploitation. See generally Chidi Oguamanam, Documentation and Digitization of Traditional Knowledge and Intangible Cultural Knowledge: Challenges and Prospects in cultural diversity and sustainable development 357-383 (Toshiyuki Kono, ed., 2009). 

The Law and Ethics of Cultural Appropriation: Why Using Cultural Identities for Commercial Gain Seems like a Wrong without a Remedy

J. Osei-Tutu* 

Introduction

With increasing regularity, companies and celebrities are being publicly criticized for engaging in cultural appropriation. Indeed, it seems to have become part of the public consciousness, regardless of whether one agrees with the concept of cultural appropriation. But what are we talking about when we talk about cultural appropriation and how does it differ from what is considered cultural appreciation? How much should be shared and borrowed and what should be considered as cultural identity that belongs to another? Some commentators have asserted that culture cannot belong to anyone[1] while others have argued that failing to protect cultural identities can be harmful to the members of those groups.[2] The “free culture” stance, which is based on the claim that traditional cultural works should be available to all as part of the public domain, is too often used to silence indigenous and local communities when they attempt to prevent the commercial misuse of their identities.[3] Further, it is not quite accurate to assert that culture or cultural products are free,  that culture cannot be “owned,” or that law does not regulate identity.

Culture can mean many different things, but as it is used here, culture and cultural products refer to creative works, but also to aspects of food, fashion, and other items that may be indicators of the cultural heritage of an identifiable group. Creating and maintaining culture, even as it evolves, is not “free” because it takes effort not only to develop cultural goods and cultural identities, but also to maintain them. Even leaving the labor argument aside, consider this: if you do not commercialize your identity, whether it is an individual or collective identity, does it mean that I can, or should, be able to make commercial use of that identity? That may be an ethical question, but there are also legal issues that arise with respect to cultural appropriation.

This short essay will address the relationship between cultural appropriation, intellectual property laws, and international law to identify some of the ways that law already protects culture and identity.[4] As this essay argues, the law can provide some limited protection and regulation of cultural identities to prevent certain types of commercial misappropriation. If we think of the ways the law already regulates both culture and identity, the foundation for more adequately preventing the commercial misuse of cultural identities already exists. As this essay argues, it is not a stretch to contemplate law’s role in cultural appropriation as a means to regulate the commercial use of collective cultural identities.

What do we mean when we talk about Cultural Appropriation?

Claims of cultural appropriation range from assertions about who can wear a particular hairstyle to attempts to prevent fashion houses from adopting the traditional outfits of indigenous communities and then selling them to customers at exorbitant prices with no benefit going to the source community.[5] Increasingly, social media criticism and public pressure lead the offending party to apologize and change course.

For example, Wal-Mart’s marketing for ice cream to celebrate Juneteenth was a flop, generating significant criticism rather than praise, even if this was an attempt to appear inclusive.[6]  Michael B. Jordan’s launch of a new rum brand he called “J’Ouvert” floundered in June 2021 after critics expressed outrage that his chosen trademark was the name of a traditional Caribbean carnival and cultural celebration.[7] Rapper, Nicki Minaj, publicly urged him to change the name, which Jordan promised to do after apologizing.[8] British fashion brand, Timbuktu, found itself embroiled in controversy over its trademark over “Yoruba,” which is the name of a large Nigerian ethnic group.[9] Kim Kardashian had to rebrand her new shapewear after 2020 social media revolt over her choice to use the word Kimono, a Japanese dress, as the trademark for the underwear line.[10] In all instances, the offensive trademark was dropped.

Cultural mixing and cultural fusion are an important part of the human experience.[11] However, it depends on how the mixing or sharing occurs. Often when people speak of “cultural appropriation” it is because someone outside of a particular cultural group has used or taken something relating to the cultural identity without acknowledgment, or in a way that members of the group may find demeaning or exploitative. This can lead to discussions about “owning” culture, the argument being that culture is meant to be shared, but not owned by any particular individual.[12] But how can someone “appropriate” something that is not owned? Hence, some commentators may see cultural appropriation as a matter of ethics and not a legal question, particularly if there are no legal consequences for cultural appropriation.[13] This is where some of the confusion lies.

First, it is not accurate to say that one cannot “own” culture. To the contrary, there are laws that regulate aspects of cultural exchange, and we can certainly “own” and have rights over cultural items. For example, you can own a physical painting and someone else may own the copyright, which is an intangible right over the artistic work. If someone steals the physical painting or reproduces the copyrighted aspects of the painting, they will face legal liability.[14] Second, there are laws that regulate and recognize cultural heritage, including the preservation of word cultural heritage.[15] Finally, the tort of appropriation protects the name, image, and likeness of individuals.[16] This legal regulation of identity will be the focus of the remainder of this essay.

The law protects individual identities from commercial appropriation, but it is not only individuals who have identities. Indeed, the very idea of regional or national cultures is an acknowledgment that cultural groups also have identities.  One of the challenges relating to collective ownership and collective identity is the concern that the group will oppress the individual rights of its members.[17] The risk of oppression by the group is a legitimate concern and one that can be appropriately addressed by implementing certain protections. For example, in corporate law, individual shareholders have rights even though they are members of a larger corporate body.[18] The questions relating to the oppression of the group, however, go beyond the scope of this short essay, which will briefly illustrate some of the ways intellectual property laws and international law protect identity.

Appropriation of Name, Image, and Likeness

We can think of “appropriation” in different ways. For example, one dictionary definition of the verb “appropriate” has three meanings: “to take exclusive possession; to set aside or to assign to a particular purpose or use; to take or make use of without authority or right.”[19] This is different from what one will find for the tort of appropriation, which prohibits the unauthorized taking of an individual’s name, image, and likeness for commercial purposes. The protection for one’s name, image and likeness is the right of publicity, which evolved from the right of privacy.[20] As it relates to the tort of appropriation, one must generally prove that the defendant used the plaintiff’s identity and that such use was without permission; that the use was to the defendant’s advantage, whether commercially or otherwise; and that it resulted in injury.[21]

 In the United States, the laws relating to identity vary from state to state.[22] This means that sometimes tenuous elements of identity, such as the portrayal of a stick figure look-alike of a famous woman, may be protected[23] but in other cases, the scope of protection is much more limited.[24]  While the level of protection varies across the country, the right of publicity enables individuals to prevent the unauthorized commercial appropriation of their identity. Even though the right of publicity is generally limited to individuals, it is an illustration of the law regulating and protecting identity. A similar type of identity protection could include clearly identifiable cultural groups.

As the next section will explain, protecting cultural identities does not necessarily lead to stifling cultural exchange. While cultural appropriation is not without a basis, one valid critique of cultural appropriation claims is that they too often include efforts to police individual personal expression, such as the choice of hairstyle or the choice of clothing. For example, singer Justin Bieber was accused of cultural appropriation for wearing his hair in dreadlocks, and British musical artist Adele was accused of cultural appropriation for wearing Bantu knots and Jamaican colors to a Caribbean festival in London.[25] This type of overclaiming makes it easier to dismiss commercial appropriation that raises issues that are not so far removed from what the law might protect for a corporation or a public figure. When a corporation uses the name or re-purposes the traditional clothing of a clearly identifiable group for commercial purposes, this can raise valid concerns relating to the dignity of members of the affected group.

 Intellectual Property Laws, Culture, and Identity

The law can protect and control identity, particularly if a group has taken on the form of a legal corporation. For example, trademark law protects commercial identities, as represented by a particular brand. Volkswagen, for example, is a vehicle brand that has a commercial identity that is protected by law. People cannot make use of the Volkswagen logo or name for commercial purposes and then rely on the argument that it is a “remix” or that it is simply a matter of freedom of expression.[26]

Traditional intellectual property laws, such as copyright and trademark laws, also regulate cultural products, including food and clothing. For example, certain types of food are eaten in and associated with Japan, while other types of food are eaten in and associated with Nigeria. Cultural groups may have traditional clothing items that pertain to their cultural group, such as the Japanese Kimono. Thus, when Kim Kardashian named her underwear brand Kimono, she received significant negative criticism for failing to recognize that the word Kimono refers to a traditional Japanese dress and that many people did not appreciate having the name of their traditional cultural dress used as the name for an underwear line.[27]

If the cultural group has trademarked their identity or already used it commercially, as was the case with the Navajo Nation in their dispute with Urban Outfitters, they have a greater chance of success.[28] But this requires that communities have adequate resources to effectively utilize the traditional western legal system, including hiring lawyers to help them obtain and police their trademarks, for instance. It also requires that they make commercial use of their identities as indicators of source.

Geographical indications are a terrific example of cultural regulation. Geographical indications protect a name or symbol that indicates that a product comes from a certain geographic location if there is some quality, reputation, or other characteristic of the product that is “essentially attributable” to its geographic origin.[29] One can think of a geographical indication, at least as it is protected under U.S. law, as a kind of specialized geography-based cultural trademark. Because geography and culture are intertwined, geographical indications are one of the best tools available for protecting cultural identities and cultural heritage. Again, it requires some financial investment to create the legal mechanisms, but countries are increasingly turning to these marks to protect their cultural products.[30]

One of the challenges raised in relation to cultural appropriation claims is that there may be competing identities in different geographic regions. As one observer queried, when the Seminole Nation of Oklahoma and the Seminole Tribe of Florida disagree on whether Florida State University's usage of Seminole imagery is appropriate, how can a decision be made on who is right?[31] In my view, this kind of challenge is not a barrier to protecting cultural marks. The better answer is that the Seminole of Oklahoma should not be able to prevent the Seminole of Florida from engaging in specific uses of the Seminole name in Florida.

The law is capable of addressing regional differences for trademarks and geographical indications, which means that regional differences are not an insurmountable hurdle.[32] Since trademark rights are territorial, it is possible to have the same mark in two different geographic locations.[33] Indeed, we are familiar with the use of the same name for different products such as Delta (airline) and Delta (faucets).[34] This example serves only to illustrate that the law is able to handle complexity, provided one can identify a logical basis for distinctions. In the case of the Delta brands, the distinction is due to the products and services being completely different, so the public will not be confused.[35] In the case of the Seminole, since both groups have valid claims to the way the Seminole are represented, the distinction could be based on geographic location.

Cultural group identities may be more difficult to define and protect than individual identities. But, as this essay argues, cultural groups can, and do, have collective identities. While it may appear that cultural identity is an area where the law has little or no role, or that there is no legal aspect of “cultural appropriation” this is not accurate. As the next section illustrates, in addition to intellectual property laws that protect identity, there are international laws that protect cultural property and intangible cultural heritage, including collective cultural identities.

International Law, Culture, and Identity

International law protects cultural heritage, even though it is not necessarily protected for the benefit of a particular group or nation.[36] In addition, most nations recognize, through international agreements, the need to protect intangible cultural heritage.[37] Intangible cultural heritage is intergenerational and it refers to “the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.”[38]

Further, more than 90 countries have legislation protecting traditional knowledge or traditional cultural expressions, and approximately 25 countries explicitly assign ownership to indigenous and local communities.[39] In addition, negotiations to protect intangible cultural heritage in the form of traditional knowledge and traditional cultural expressions have been ongoing at the World Intellectual Property Organization for several years now.[40] Recently, the EU expanded the existing geographical indication system to include registration for craft and industrial products, which is another form of intangible cultural heritage.[41]

International laws relating to cultural property and cultural heritage sites are well established.[42] Protection for intangible cultural heritage is less clearly established, but cultural rights are part of the international human rights framework. For example, the Universal Declaration of Human Rights and the International Covenant on Economic, Social, and Cultural Rights recognize the right to participate in cultural life as a human right[43] and the Special Rapporteur in the field of cultural rights has outlined several international laws that protect cultural rights.[44] This is not to suggest that culture is static or that there should be no cultural mixing. While cultural rights are core to human rights, it has been emphasized that the right to engage multiple identities and to participate in cultural mixing is also a human right and a cultural right.[45] It is not a question of whether culture should be shared, but rather whether it is done in a manner that is respectful of all persons.[46]

Conclusion

This essay has identified some of the ways that the law protects identity. The suggestion that it is not possible to “own” culture is an argument that is too often deployed to dismiss arguments, often from indigenous peoples and other historically disadvantaged groups, that they have a right to their cultural intellectual property. Yet, if a cultural group has the financial resources and access to the necessary legal expertise, they could—like any other corporation—obtain intellectual property rights over their identities. There is, technically speaking, no bar to protecting a cultural identity if one has the financial resources and the knowledge to effectively utilize trademarks and geographical indications. However, this requires the ability and willingness to use the cultural identity in the trademark sense as an indicator of source for goods or services. It also means that the law currently allows corporations and people outside of a cultural group to obtain intellectual property rights over the identity of another, such as Cherokee,[47] or Yoruba.[48]

This is not an argument in favor of limits on individual self-expression, such as choice of hairstyle or clothing, nor is it an assertion that every cultural exchange or instance of cultural borrowing amounts to cultural appropriation. The question that requires careful consideration and justification is why we should treat cultural identities as inherently unworthy of legal protection by the affected group. Importantly, if a cultural group chooses not to use their identity in commerce, should that cultural identity be available for others to commercialize? In my view, to allow commercial uses of cultural identities without considering the cultural rights and interests of the affected group is neither a socially responsible nor respectful approach to intellectual property rights and intangible cultural heritage.

* J. Janewa Osei-Tutu, B.A., J.D., LL.M, Professor of Law, Florida International University College of Law. My thanks to Naomi Price, the editors of Notre Dame’s Journal of International and Comparative Law, and Professor Caponigri for the opportunity to participate in the Notre Dame symposium on International and Comparative Approaches to Culture.  I appreciated the thoughtful audience questions to our panel debate on “The Law and Ethics of Cultural Appropriation.” I am grateful to MaryGrace Longoria for her excellent research assistance and to Ijeoma Oti for her editorial work.  All errors and omissions are mine.

[1] Michael F. Brown, Can Culture Be Copyrighted?, 39 Current Anthropology, 193-222 (1998).

[2] Lily Martinet, Traditional Cultural Expressions and International Intellectual Property Law, 47 Int’l J. Legal Info., 11 (2019); Tzen Wong, Intellectual Property and Human Development 188 (2011).

[3] See Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 Cal. L. Rev. 1331, 1335 (2004) (“Native peoples once stood for the commons. But in the advent of an awareness of the valuable genetic and knowledge resources within native communities and lesser developed nations, the advocates for the public domain--and, in turn, propertization--have flipped. Now, corporations declare the trees and the shaman's lore to be the public domain, while indigenous peoples demand property rights in these resources. But romantic discourses of the public domain thwart the new claims for property emerging in the developing world and in Western indigenous communities. Focused more on form than function, the increasingly binary rhetoric of “intellectual property versus the public domain” deafens us to new claims by individuals who seek to restructure social and economic relations through property-like rights.”); Id.

[4] Some commentators also object to the idea of cultural appropriation as something similar to corporate intellectual property. See, i.e. Kwame Appiah, “The Ethicist: I am an Art Therapist. Am I guilty of Cultural Appropriation?” New York Times Magazine (August 17, 2021) https://www.nytimes.com/2021/08/17/magazine/im-an-art-therapist-am-i-guilty-of-cultural-appropriation.html. Despite such resistance to an intellectual property model for cultural appropriation, this essay will point out some of the similarities between corporate intellectual property and cultural appropriation, and the ways that the law privileges the corporation over the cultural group.

[5] Cydney Henderson, “’Totally Offensive’: Justin Bieber Accused of Cultural Appropriation Over New Dreadlocks, USA Today (April 27, 2021)   

https://www.usatoday.com/story/entertainment/celebrities/2021/04/27/justin-bieber-accused-cultural-appropriation-over-new-dreadlocks/4861916001/; Scarlett Conlon, Isabel Marant Accused of Plagiarism, Vogue (June 19, 2015), https://www.vogue.co.uk/article/isabel-marant-plagiarism-claim-santa-maria-tlahuitoltepec-oaxaca.  

[6] Jordan Valinsky, Walmart Apologized for Selling Juneteenth Ice Cream, CNN Business (May 24, 2022), https://www.cnn.com/2022/05/24/business-food/walmart-juneteenth-ice-cream/index.html.

[7] Keishel William, Michael B. Jordan is Apologizing After Fans, Nicki Minaj Call Out His New Rum for Caribbean Appropriation, Business Insider (June 22, 2021), https://www.businessinsider.com/nicki-minaj-weighs-in-on-michael-b-jordan-appropriation-controversy-2021-6.

[8] Actor Michael B. Jordan to Rename J’Ouvert Rum After Nicki Minaj Criticism, BBC (June 23, 2021), https://www.bbc.com/news/entertainment-arts-57581240.

[9] Rob Picheta, British Fashion Brand Timbuktu Accused of Cultural Appropriation for Trademarking ‘Yoruba’, CNN Business (May 25, 2021), https://www.cnn.com/2021/05/24/business/timbuktu-yoruba-trademark-scli-gbr-intl/index.html.

[10] Vanessa Friedman, Kim Kardashian West and the Kimono Controversy, N.Y.Times (June 27, 2019), https://www.nytimes.com/2019/06/27/fashion/kim-kardashian-west-kimono-cultural-appropriation.html.

[11] Karina Bennoune (Special Rapporteur in the Field of Cultural Rights), Cultural mixing and Cultural Rights, U.N. Doc. A/76/178 para. 10 (July 19, 2021).

[12] Michael F. Brown, Who Owns What Spirits Share - Reflections on Commodification and Intellectual Property in New Age America, 17 Pol. & Identity in the Am. 7 (1994).

[13] Audience question, “The Law and Ethics of Cultural Appropriation” Panel, Journal of International and Comparative Law Volume 12 Symposium: International and Comparative Approaches to Culture (Mar. 15, 2022).

[14] Copyright Act of 1976, 17 U.S.C. § 303 (2021), https://www.copyright.gov/title17/title17.pdf

[15] Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 23, 1972, 1037 U.N.T.S. 151, https://whc.unesco.org/en/convention/; Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216, https://en.unesco.org/protecting-heritage/convention-and-protocols/1954-convention.

[16] See Restatement (Third) of Unfair Competition § 46 (Am. Law Inst. 1995).

[17] Chidi Oguamanam, Indigenous Peoples' Rights At The Intersection of Human Rights And Intellectual Property Rights, 18 Marq. Intell. Prop. L. Rev. 261, 290 (2014)

[18] 9 Business Organizations with Tax Planning § 108.01 (Bender 2022), https://plus.lexis.com/document?crid=5ed90cc7-10da-48b4-a96c-8b1e15848274&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A523N-0720-R03K-41BW-00000-00&pdsourcegroupingtype=&pdcontentcomponentid=165596&pdmfid=1530671&pdisurlapi=true  

[19] “Appropriate,” Merriam-wesbster.com, https://www.merriam-webster.com/dictionary/appropriate (last accessed June 29, 2022).

[20] See Restatement (Third) of Unfair Competition § 46 (Am. Law Inst. 1995).

[21] Right of Privacy: Overview, Practical Law Practice Note Overview w-009-4039 (West).

[22] Id.

[23] See White v. Samsung Electronics America Inc., 989 F.2d 1512 (9th Cir. 1993) (rehearing en banc denied).

[24] See Lohan v. Take-Two Interactive Software, 97 N.E.3d 389 (N.Y. 2018).

[25] Sarah Young, Bantu Knots: What are they and why has Adele been accused of cultural appropriation?, The Independent UK (Aug. 31, 2020), https://www.independent.co.uk/life-style/adele-bantu-knots-history-black-african-hairstyles-cultural-appropriation-a9697046.html; Natasha Mulenga, Adele Addressed Cultural Appropriation Backlash for Wearing Batu Knots, Teen Vogue (Oct. 8, 2021), https://www.teenvogue.com/story/adele-addressed-cultural-appropriation-backlash-bantu-knots-vogue-covers; Heran Mamo, Justin Bieber Brings Back His Dreadlocks & The Criticism That Comes With Them, Billboard (Apr. 26, 2021), https://www.billboard.com/music/music-news/justin-bieber-debuts-dreadlocks-accused-cultural-appropriation-9563279/.

[26] There are, of course, exceptions such as the parody exception which protect expressive speech. See Trademark Act of 1946 as am. (Lanham Act), 15 U.S.C.§43(C)(3)(A)(ii).

[27] Vanessa Friedman, Kim Kardashian West and the Kimono Controversy, N.Y. Times (June 27, 2019), https://www.nytimes.com/2019/06/27/fashion/kim-kardashian-west-kimono-cultural-appropriation.html.

[28] Nicky Woolf, Urban Outfitters Settles with Navajo Nation After Illegally Using Tribe’s Name, The Guardian (Nov. 18, 2016), https://www.theguardian.com/us-news/2016/nov/18/urban-outfitters-navajo-nation-settlement; Navajo Nation v. Urban Outfitters, Inc., 935 F. Supp. 2d 1147, 1161–1169 (D.N.M. 2013).

[29] World Intellectual Property Organization, Geographical Indications, https://www.wipo.int/geo_indications/en/. See also Tzen Wong, Intellectual Property and Human Development 7 (2011).

[30] World Intellectual Property Organization, Ghana Joins Geneva Act of WIPO’s Lisbon Agreement (Nov. 3, 2021), https://www.wipo.int/lisbon/en/news/2021/news_0011.html.

[31] Audience question, “Internationalism vs. Nationalism“ Panel, Journal of International and Comparative Law Volume 12 Symposium: International and Comparative Approaches to Culture (Mar. 15, 2022).

[32] See, e.g., TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement] art. 24(4) (allowing continued use for pre-existing geographical indications for wines and spirits in different geographical regions if they had been in use for at least 10 years before April 15, 1994.).

[33] World Intellectual Property Organization, Obtaining IP Rights: Trademarks,

https://www.wipo.int/sme/en/obtain_ip_rights/trademarks.html.

[34] Siva Vaidhyanathan, Intellectual Property: A Very Short Introduction (2017).

[35] Id.

[36] See Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 23, 1972, 1037 U.N.T.S. 151, arts. 1-6.

[37] The States Parties to the  Convention for the Safeguarding of Intangible Cultural Heritage, United Nations Educational, Scientific and Cultural Organization (last accessed July 27, 2022), https://ich.unesco.org/en/states-parties-00024 (As of 2020, 180 states had ratified the Convention for the Safeguarding of Intangible Cultural Heritage); See World Intellectual Property Organization Lex, https://wipolex.wipo.int/en/legislation/results?subjectMatter=16&subjectMatter=18&last=true.

[38] Convention for the Safeguarding of Intangible Cultural Heritage (Paris 17 October 2003) https://ich.unesco.org/en/convention .

[39] World Intellectual Property Organization Lex, (last accessed July 25, 2022), https://wipolex.wipo.int/en/legislation/results?subjectMatter=16&subjectMatter=18&last=true (analysis of legislation).

[40] World Intellectual Property Organization, Background Brief No.2 : World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, (2016), https://tind.wipo.int/record/28829. See also Oguamanam, supra note 17 at 275.

[41] European Commission, Regulation on Geographical Indications for Craft and Industrial Products (2022), https://ec.europa.eu/growth/publications/regulation-geographical-indications-craft-and-industrial-products-documents_en.

[42] Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 23, 1972, 1037 U.N.T.S. 151, https://whc.unesco.org/en/convention/; Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216, https://en.unesco.org/protecting-heritage/convention-and-protocols/1954-convention.

[43] Universal Declaration of Human Rights, G.A. Res. 217 (III) A, Art. 27,  U.N. Doc. A/RES/217(III) (Dec. 10, 1948) https://www.un.org/en/about-us/universal-declaration-of-human-rights; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Exec. Doc. D, 95-2, 993 U.N.T.S. 3,

https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights.

[44] See U.N. Human Rights Council, International Standards, U.N. Doc. A/HRC/14/36 (Mar. 22, 2010), https://www.ohchr.org/en/special-procedures/sr-cultural-rights/international-standards.

[45] See Bennoune, supra note 11 at para 15 (“Indeed, the rights to mix, borrow, traverse and fuse cultures and to engage in syncretic cultural practice, in a rights respecting manner, should be understood as cultural rights themselves…. Cultural mixing and openness are among the foundations of cultural rights.”).

[46] See Bennoune, supra note 11 at para 46.

[47] Annie White, “Cherokee Chief Says ‘It’s Time’ For Jeep To Stop Using Its’ Name,” Car and Driver, March 4, 2021 https://www.caranddriver.com/news/a35568468/cherokee-nation-jeep-stop-using-name/ .

[48] Rob Pichetta, “British Fashion Brand Accused of ‘Cultural Appropriation’ for Trademarking ‘Yoruba’” CNN Business, May 25, 2021 https://www.cnn.com/2021/05/24/business/timbuktu-yoruba-trademark-scli-gbr-intl/index.html .