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‘Theoretical justifications’ for expanding intellectual property law to include ‘cultural personality’ protections
A University of Miami law professor recently offered reasons why that the public should consider extending copyright law to include “collectively held cultural identities.”
In an excerpt of her paper “Protecting Cultural Personality” in Race, Racism and the Law, J. Janewa Osei-Tutu notes companies such as Timbuk and Louis Vuitton “have designed and marketed clothing based on traditional ethnic clothing styles or symbols” … but without the “knowledge, consent, or involvement of the cultural group” in question.
Currently, individuals and companies have only backtracked from alleged “misuse of indigenous cultural heritage” due to social pressure and criticism.
Examples include Kim Kardashian, who got heat for marketing a clothing item with the term “Kimono,” and automotive manufacturer Stellantis, which Osei-Tutu claims stopped using “Cherokee” for its Jeep Cherokee in 2023 at the behest of the Cherokee Nation.
(According to Slashgear, declining sales, not Native American concerns, was the real issue; in addition, a new version of the Jeep Cherokee is slated to reappear in the U.S. this year.)
Osei-Tutu argues intellectual property laws are “underinclusive — at least in relation to valuable intangible cultural heritage from indigenous communities and local communities from the global south [which] allows corporations and those outside the community to capture and monetize this unprotected resource, which means that it is exposed and subject to misappropriation.”
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In order to protect “cultural personality rights,” Osei-Tutu (pictured) says cultural groups should have “sufficient boundaries and markers, or indicia” by which to identify them.
Groups can be “self-defining,” and it’s “not necessary for the public to have significant knowledge of the group.”
Cultural personality rights would include only “representations of cultural identity that are either already protected as intangible cultural heritage under some national law or that could have been protected under IP law but for the collective nature, temporal limitations, or lack of commercial use.”
Such law(s) would pertain only to commercial use, not private. Thus, the Cherokee Nation would “have greater recourse” to negotiate with Stellantis over the name of the Jeep, but Justin Bieber would be permitted to wear his hair in dreadlocks. (But would he be allowed?)
Osei-Tutu explicitly notes hers are “theoretical justifications” for such an expansion of intellectual property law, not “precise applications.”
According to her faculty page, in addition to I.P. law Osei-Tutu writes about “traditional knowledge and traditional cultural expressions with a focus on fashion and cultural heritage.” She’s also “recognized [for] her expertise on intangible cultural heritage and traditional indigenous knowledge.”
The Race, Racism and the Law blog which excerpted the Osei-Tutu article belongs to University of Dayton School of Law Professor Emerita Vernellia Randall who in 2021 wrote “The Whitest Law Schools Rankings,” and more recently claimed Charlie Kirk “reinforced the architecture of racial dominance.”
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