What does diversity have to do with cultural appropriation? And why do intellectual property rights – like trademarks, copyrights, or patents – matter? The connection may not be immediately obvious. But think about fashion, marketing and advertising campaigns, or traditional medicine and you can see the connection. Maybe you own a fashion item from another culture, or you have engaged in the practice of some traditional medicine or traditional spiritual practice. Most of us have – and that’s part of cultural exchange.

Often, diversity is discussed in the workplace as a hiring issue, or as a representation issue. But diversity is about more than the workplace or the people shown in an advertisement. It can also show up when you bring cultural elements, such as cultural symbols or traditional cultural patterns, into your advertising and branding. This kind of diversity is also important because different types of representation matter, which is why diversity and cultural intellectual property go hand in hand. Cultural intellectual property recognizes and protects the cultural heritage and expressions of communities across the globe. From music and dance to literature and art, many cultures have unique forms of creative expression that are deeply rooted in their history, traditions, and beliefs.

Cultural Appropriation, Intellectual Property & Fashion

If we think about how culture and fashion relate to each other, for example, we can see how intellectual property law, fashion and cultural appropriation come together. Some fashion items can be protected by copyright or design patents and most brands rely heavily on trademarks. Fashion is closely connected to culture and geography because different geographic locations and cultures have different styles. When it comes to traditional dress, the specific look will vary depending on region and it can be a way to identify people as coming from a particular culture. A simple example is the Kimono, which is widely recognized as a type of Japanese dress. When Kim Kardashian decided to name her shapewear “Kimono,” she was quickly reminded of the cultural connection to her chosen brand name. After the negative public response, she rebranded as Skims. Sometimes there are cultural elements that are protected as cultural heritage that has been passed down from generation to generation. This is recognized under international law and is called intangible cultural heritage. Cultural IP includes cultural goods that could be protected under copyright or trademark law, but they are not usually protected because of time limitations or because the group is not using the symbol as a trademark.

Cultural Intellectual Property, Art & Businesses

Aside from fashion, there are other areas where cultural IP shows up. A company might be relying on some traditional indigenous medicine to sell and promote specific herbal products. Or a small business might want to incorporate different cultural elements into a marketing campaign. Or an artist may have come up with a song that draws on different cultures. Or maybe you’re operating a business and you’re thinking about using a particular cultural name. The question becomes whether or not that name is also protected cultural heritage, which is an issue that Aloha Poke faced, for example. Or if that name is something that pertains to a particular ethnic group, which became an issue for fashion brand, Timbuktu.

Trademarks, Copyrights & Culture

It’s true that we don’t own culture, but some aspects of culture are protected by intellectual property rights. For example, copyright protects creative, expressive works. Some of these symbols could be protected by copyright law if they had been created independently within the life of the author plus 50-70 years. But copyright doesn’t necessarily protect creative, expressive works that have been handed down over the generations. Under trademark law if they were symbols used for commercial, and not just cultural, purposes they could be protected as trademarks. This is an example of how there can be a gap between intellectual property protection and cultural heritage that is then sometimes taken and used by others over objection of the source community.

International Law

The cultural intellectual property that is often appropriated includes traditional knowledge and traditional cultural expressions. Traditional knowledge includes “knowledge, know-how, skills, and practices that are developed, sustained, and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.” Traditional cultural expressions include, among other things, music, dance, art, designs, names, symbols, performances, and ceremonies.

The World Intellectual Property Organization, which is a specialized UN agency that focuses on intellectual property, has spent several years negotiating intellectual protection for traditional knowledge and traditional cultural expressions. The progress has been slow, but there has been some recent progress on intellectual property and genetic resources. International agreements on copyright, trademark, and patent, which set the minimum standards of protection for several countries, do not require copyright, trademark, or patent protection for cultural intellectual property. However, many countries now have domestic protection for their cultural intellectual property. Mexico, for example, has become more active in protecting its indigenous cultural heritage, through new laws and by publicly challenging designers who make use of protected Mexican cultural heritage without acknowledgement or permission.

Cultural Intellectual Property, Cultural Exchange & Diversity

Of course, cultural exchange and sharing are an important part of cultural diversity. We all want to see ourselves represented, but we want to see our best selves reflected. No one aims to be a caricature or to see their culture represented as inferior or inadequate. When we embrace diversity and mutually respectful exchange, we create space to enrich our understanding of different cultures, and to break down stereotypes and biases that can create barriers between people. Cultural intellectual property is an important part of the conversation around diversity and representation.