Drawing the Line: Cultural Appropriation, Cultural Appreciation, and the Limits of Intellectual Property Law

Introduction

The Mixe indigenous people in Oaxaca, Mexico, recognized the designs of the French luxury brand Isabel Marant’s 2015 collection of embroidered blouses right away because they were nearly identical to patterns they had worn for centuries and registered as part of their own cultural history. Marant made significant profits from what some referred to be simple theft, failed to give credit to the community, and did not obtain permission. The community complained. The fashion press covered it for a week. Then the collection sold out.

The neighborhood voiced complaints. This story encapsulates the fundamental conflict at the core of cultural appropriation in law: a market that tends to reward rather than discourage the behavior complained of, a legal structure that is fundamentally ill-equipped to identify it, and a harm that is apparent to its victims.This article examines whether international and domestic law currently draws, or can draw, a legally meaningful line between cultural appropriation and cultural appreciation, and whether such a line is either necessary or desirable.

Defining the Problem

Cultural appropriation is commonly defined as the adoption of elements from a minority or marginalised culture by members of a dominant culture, typically without consent, attribution, or equitable benefit-sharing.[1] The elements appropriated are wide-ranging: visual designs, textile patterns, musical forms, ritual dress, sacred symbols, foodways, and language. Cultural appreciation, by contrast, involves the respectful, acknowledged engagement with another culture, participation in exchange rather than extraction.

The distinction is morally intuitive but legally unstable. Consent and attribution are not criteria recognised by conventional intellectual property regimes. The question of who is harmed, and in what legally cognisable sense, is complicated by the communal, intergenerational nature of cultural production, which stands in sharp contrast to the individual-author model that underpins most IP doctrine. As Article 31 of the UN Declaration on the Rights of Indigenous Peoples recognises, indigenous communities have rights to “maintain, protect and develop” their cultural heritage and intellectual property.[2] But recognising a right in the abstract and providing an enforceable legal remedy are distinct exercises.

Why Existing Intellectual Property Law Falls Short

• Copyright

Copyright protects original works of authorship fixed in a tangible medium.[3] This paradigm is structurally misaligned in at least three ways with regard to traditional cultural expressions (TCEs), which include the oral traditions, dances, songs, and textile patterns that make up the living cultural legacy of indigenous and minority populations. First, since TCEs are communal and repetitive by nature, copyright demands originality in the sense of a single creative act. It is impossible to pinpoint a single author as the source of creation. Second, the terms of copyright expire. Cultural heritage does not; for example, a Yoruba textile pattern or a Maori haka are not readily available for commercial usage because they were first performed a century ago. Third, and perhaps most importantly, the expressions that are most vulnerable—ritual, oral, and embodied—may not have the fixed form that initiates copyright protection.

• Trademark and Geographical Indications

In theory, trademark law can safeguard cultural symbols utilized in commercial activities. Indigenous communities could theoretically register their unique symbols or marks and contest third-party usage. In practice, registration necessitates commercial utilization or a genuine intention to trade, standards that do not inherently align with communal heritage. Geographical indications (GIs) present a more favorable opportunity for certain communities: the safeguarding of Champagne, Darjeeling tea, or Oaxacan mezcal shows that community-based rights tied to specific locations can be upheld globally. However, GIs safeguard the geographic origin of items, not their cultural significance. They do not stop a fashion brand in Paris from taking the visual language of an Andean weaving heritage without giving credit.[4]

• The Novelty and Fixation Gaps

Patent law mandates that an invention must be novel; it should not have been previously known or utilized. Traditional knowledge, being practiced for generations, is inherently prior art and thus cannot be patented, no matter how innovative its evolution might have been within the originating community. The legal outcome is contradictory: the ancient nature of a cultural practice that imparts its importance also renders it ineligible for the protection that the law offers to more recent, usually Western-developed innovations[5]. Collectively, these doctrinal shortcomings imply that the cultural manifestations most vulnerable to commercial exploitation are exactly those that current IP frameworks are the least able to safeguard

Existing Legal Routes: Partial and Piecemeal

This is not to say that law offers nothing. Several partial mechanisms exist. In the United States, the Indian Arts and Crafts Act 1990 prohibits the marketing of goods as “Indian-made” unless they are produced by a member of a federally recognised tribe, a truth-in-advertising measure that addresses a narrow subset of misappropriation.[6] It does not, however, create a cause of action for the use of traditional designs without false labelling. Passing off doctrine, available in common law jurisdictions, requires establishing reputation and misrepresentation, neither of which straightforwardly applies when a fashion brand appropriates a cultural design without claiming indigenous origin. Although there hasn’t been much litigation on the subject, consumer protection law may be used to stop misrepresentations of cultural authenticity that are related to greenwashing.
A different vocabulary is provided by human rights law. UNDRIP Article 31 is the clearest international statement of indigenous intellectual property rights, but UNDRIP is a declaration, not a binding treaty, and its implementation depends entirely on domestic legislative will. The gap between the declaratory and the enforceable remains wide.

The International Response: WIPO and the Push for a New Framework

The most important recent legal advancements in this field have occurred on a global scale. The Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK Treaty), the first WIPO treaty with provisions expressly for indigenous peoples and local communities, was unanimously adopted by WIPO member states in May 2024. The treaty deals with the more specific issue of patent disclosure: applicants must reveal the nation of origin and, if relevant, the indigenous community that supplied the information if their inventions are based on genetic resources or related traditional knowledge. 44 states had ratified the agreement as of May 2025.

Importantly, however, the GRATK Treaty does not directly address TCEs, the dances, textiles, symbols, and oral traditions at the heart of most appropriation controversies. That work is continuing through the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which is developing separate legal instruments for TCE protection.[7] The IGC’s draft articles propose a tiered rights system: sacred TCEs would attract exclusionary rights, preventing any use without community consent; secular TCEs would attract softer protections grounded in attribution and benefit-sharing.[8] This distinction has intuitive appeal but raises difficult boundary questions, who determines what is sacred, by what process, and with what consequences for dissent within communities? 

Is there a need for a Legal Line?

The case for a legal prohibition rests on three foundations. The harm-based argument holds that commercial appropriation without consent or attribution causes economic damage, depriving communities of the market for their own cultural products, as well as dignitary harm, through the decontextualisation and commercialisation of practices with deep spiritual or social meaning.[9] The rights-based argument holds that UNDRIP Article 31 already establishes the normative case; what is needed is legal architecture to enforce it.[10] The corrective justice argument holds that appropriation by dominant cultures from historically marginalised ones is not culturally neutral exchange but an extension of colonial extraction, and that law has a role in disrupting that pattern.

The counterarguments are not trivial. The free culture argument holds that all art involves influence, borrowing, and recombination, and that a legal prohibition on cross-cultural exchange would chill creativity and entrench cultural essentialism, the notion that each culture is a sealed category belonging to its members alone.[11] There is a real tension here: the same logic that would protect Andean weaving traditions from Parisian fashion houses could also be used to prevent an Indian musician from performing blues or a Nigerian novelist from writing in the tradition of the European realist novel. The definitional challenge, distinguishing appropriation from influence, from appreciation, from evolution, does not resolve easily into a legal test.

A more workable framing is consent and context. The conduct that most clearly warrants legal intervention is not cross-cultural engagement per se but commercial exploitation of sacred or economically significant cultural material without consent, attribution, or benefit-sharing. This framing avoids the essentialism critique, remains grounded in cognisable harm, and maps onto the structure that WIPO’s emerging TCE framework is already beginning to build.

Conclusion

The question this article asks, whether there is or should be a legal line between cultural appropriation and appreciation, admits of no clean answer under current law. Existing IP frameworks were built on assumptions of individual authorship, fixed expression, and commercial novelty that systematically exclude traditional cultural production from meaningful protection. The law, as it stands, largely permits what ethics condemns.

The GRATK Treaty of 2024 represents genuine international progress, and the ongoing WIPO IGC negotiations on TCEs represent the most promising avenue for closing the gap. A dedicated sui generis regime for TCEs, structured around community consent, contextual attribution, and equitable benefit-sharing, administered through collective management structures, would provide a more coherent framework than the current patchwork of partial remedies.[12]

Whether that framework materialises depends on political will among WIPO member states, most of whom are the wealthy importing countries that benefit from the current legal vacuum. The communities whose heritage is at stake are watching, and the question of whether international law will finally serve them is one that the next decade of negotiations will answer.

References

International Instruments

• Berne Convention for the Protection of Literary and Artistic Works (adopted 9 September 1886, as amended).
• ILO Convention No 169 on Indigenous and Tribal Peoples (adopted 27 June 1989, entered into force 5 September 1991).
• UN Declaration on the Rights of Indigenous Peoples, UNGA Res 61/295 (13 September 2007).
• WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK Treaty), adopted 24 May 2024.

Legislation

• Indian Arts and Crafts Act 1990 (US), 25 USC § 305 et seq.

Books and Articles

• Lessig L, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin Press 2004).
• Riley A and Carpenter K, ‘Owning Red: A Theory of Indian (Cultural) Appropriation’ (2016) 94(4) Texas Law Review 859.
• Siems M, ‘The Law and Ethics of Cultural Appropriation’ (2019) 15(4) International Journal of Law in Context 408.
• Young JO, Cultural Appropriation and the Arts (Blackwell 2008).

WIPO Documents and Reports

• WIPO, Intellectual Property and Traditional Cultural Expressions (WIPO Publication No 913E, 2017).
• WIPO IGC, The Protection of Traditional Cultural Expressions: Draft Articles, WIPO Doc WIPO/GRTKF/IC/47/6 Rev (2024).
• Harvard International Law Journal, Preservation or Protection? The Intellectual Property Debate Surrounding Traditional Cultural Expressions (March 2025).

[1]M Siems, ‘The Law and Ethics of Cultural Appropriation’ (2019) 15(4) International Journal of Law in Context 408, 410. Siems traces the definitional contours of the term and notes its contested relationship with legal doctrine.

[2]UN Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) UNGA Res 61/295, art 31(1).

[3]Berne Convention for the Protection of Literary and Artistic Works (adopted 9 September 1886, as amended) art 2. The fixation requirement appears in art 2(2), which permits member states to require works be fixed before protection attaches.

[4] WIPO, Intellectual Property and Traditional Cultural Expressions (WIPO Publication No 913E, 2017) 6–7.

[5] Patti T Lenard and Peter Balint, Managing and Tolerating Diversity (OUP 2020) ch 3; see also James O Young, Cultural Appropriation and the Arts (Blackwell 2008) 5–12.

[6]Indian Arts and Crafts Act 1990 (US), 25 USC § 305 et seq. The Act prohibits misrepresentation in marketing of Indian arts and crafts and creates civil and criminal penalties.

[7]WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), The Protection of Traditional Cultural Expressions: Draft Articles, WIPO Doc WIPO/GRTKF/IC/47/6 Rev (2024). Negotiations continue as of 2025; a dedicated TCE instrument remains under development.

[8]WIPO IGC, Revised Draft Articles on Traditional Cultural Expressions, WIPO Doc WIPO/GRTKF/IC/46/4 (2024). The tiered structure distinguishes between sacred TCEs — which attract exclusionary rights — and secular TCEs — which attract more permissive, attribution-based protections. See further Chicago Journal of International Law, WIPO’s Proposed Treatment of Sacred Traditional Cultural Expressions (2022).

[9]Angela Riley and Kristen Carpenter, ‘Owning Red: A Theory of Indian (Cultural) Appropriation’ (2016) 94(4) Texas Law Review 859, 870–875. The authors argue for free, prior, and informed consent as the governing standard for use of Indigenous cultural materials.

[10]UNDRIP (n 2) art 31(1) (recognising the right of indigenous peoples to “maintain, protect and develop” their cultural heritage and intellectual property); see also ILO Convention No 169 on Indigenous and Tribal Peoples (1989) art 8.

[11]See Madhavi Sunder, ‘Intellectual Property and Identity Politics: Playing with Fire’ (2000) 4 Journal of Gender Race and Justice 69, 82; and Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin Press 2004) 29–30.

[12]Harvard International Law Journal, Preservation or Protection? The Intellectual Property Debate Surrounding Traditional Cultural Expressions (March 2025). The article proposes a sui generis TCE regime administered by collective management societies, combined with a digital TCE library as an anti-misappropriation safeguard.