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Mexico recently passed a law to protect the cultural heritage of indigenous and Afro-Mexican peoples. It also provides for the possibility of collective intellectual property. But what was the trigger?

New law against cultural appropriation in Mexico

It is quite normal for fashion designers to draw stylistic inspiration from different sources. Intercultural influences are nothing new and enrich creative work immensely. However, there are definitely limits. Mexico has now become the first country to set a legal limit by passing a law to protect the cultural heritage of indigenous and Afro-Mexican peoples.

Cultural appropriation triggers passionate debates because it raises a number of legal and political points of contention. On the one hand, the diversity of cultural influences is what allows fashion to evolve and thrive.

On the other hand, many traditional garments are not simply functional or decorative, but are associated with a traditional form of expression. It is part of the identity of the indigenous people who wear it. The danger of appropriation is that the cultural item may one day become completely disconnected from the indigenous origin and no longer associated with it at all, which is tantamount to erasing the cultural identity of a community. Moreover, cultural appropriation is often a consequence of colonisation and could deepen existing divisions and perpetuate patterns of historical dispossession and oppression.

Many (Western) designers and fashion companies make use of patterns of indigenous populations without being asked and without reciprocation. For example, the French fashion designer Isabel Marant: she came under criticism when the indigenous Mixe people in Oaxaca, Mexico, accused her of copying their traditional embroideries. The Mixe accused Marant of “plagiarism” by using their over five hundred year old cultural expression and passing it off as her own new creation. This led to an outcry with posts comparing Marant’s design to the Mixe’s and discussions about cultural appropriation in the fashion industry.

The particular motifs of indigenous-influenced handicrafts in Mexico have been maintained for generations and can take weeks to make by hand. Large fashion companies, on the other hand, produce mass-produced and industrial counterfeits and become competition to the local markets of indigenous communities. Often, however, the knock-offs are overpriced as designer pieces by luxury designers.

The Mexican Ministry of Culture finally saw the need for action. The new law, which is supposed to protect cultural assets as intellectual property, stipulates that the indigenous community must give its consent to the reproduction of its elements/patterns outside the community. Fashion designers would otherwise face fines or imprisonment.

What is interesting about this law is the possibility of collective intellectual property. This has so far been alien to Western intellectual property law. For example, German copyright law does not recognise collective ownership by a community, but only by the creator(s) of a particular work. How this will play out is difficult to predict. There is a risk of division and social conflict within indigenous communities: Who belongs to the community and is allowed to give ‘consent’ to the use of the crafts/motifs? A drafting of the law had taken place without the participation of the indigenous communities themselves.

Another problem is the international enforcement of the legal consequences of the law’s provisions. Despite the entry into force of the Mexican law, the most recent case of plagiarism allegations by the Chinese company “Shein” was a warning by the government.

Law or no law – for us one thing is clear: Involving indigenous communities by explicitly obtaining their consent and, if necessary, by working in partnership is always likely to be the best way and the most respectful approach for fashion designers.

Author: Olivia Wykretowicz