Written By: Frances Asha
As society, including younger generations, becomes increasingly more cognizant of instances of cultural appropriation and view the practice with disdain, companies and researchers can get their reputations into hot water by utilizing copyright, patent, and trademark law on intellectual property many would argue they have no right to own because that intellectual property is not from cultures that those companies and researchers are part of.
These instances of cultural appropriation are highly visible to the masses thanks to technological advances and the popularity of social media.[1] A Tweet can gain traction and easily get picked up by mainstream media. Suddenly, the whole world is watching. Even before the age of social media, companies still made some public relations blunders involving cultural appropriation.[2] For example, Walt Disney was criticized for trademarking the Swahili phrase “Hakuna Matata” in 1994.[3] Some attorneys defended this trademark, asserting that the trademark protects Disney’s creative use of the phrase for merchandising purposes.[4] In other words, the phrase can still be used freely as part of the language, but not on clothing. However, is it morally acceptable, even if it is legally acceptable, for a company to trademark a phrase it did not invent, especially a phrase from a culture of people whom the company is not a part of?
Companies and researchers can utilize communication, partnerships with indigenous peoples and giving credit where credit is due to reduce these sorts of conflicts, avoiding negative public opinion and maintaining respect for cultural words and traditions. Reaching out to the community the tradition, process, or word comes from can stop cultural misunderstandings about a company’s goals or intentions and avoid accusations of cultural theft. For example, a mushroom company, Mushroom Mike, was criticized on Instagram for trying to patent huitlacoche, a specific type of mushroom that has been traditionally grown and eaten by indigenous Mexicans for centuries.[5] However, rather than patenting the huitlacoche itself, he sought only to patent a particular growing process for a specific strain of huitlacoche. This process is different from indigenous methods and took Mushroom Mike five years to develop.[6] Partnering with an indigenous farmer who is familiar with huitlacoche to develop a new growing method (or at the very least paying one as a consultant) would mean having someone from the community vouch for the company. This form of community involvement and profit sharing would be one way to show respect for who first discovered and cultivated this type of mushroom. Those interested in improving a traditional method or wanting to incorporate foreign elements into a story they want to sell would benefit from engaging with and learning from the cultures they source their materials from.
Another avenue of reducing incidents of cultural appropriation is through regulation (rather than leaving the onus solely on companies to develop partnerships with indigenous peoples). For example, the World Intellectual Property Organization runs a committee dedicated to “reaching agreement on a text(s) of an international legal instrument(s), which will ensure the effective protection of traditional knowledge (TK), traditional cultural expressions (TCEs) and genetic resources (GRs).”[7] However, even with a regulatory solution, indigenous peoples and other minorities still need to be engaged with to form effective policies that protect traditional practices and expressions. This is why the World Intellectual Property Organization collects information from indigenous panels.[8]
Conflicts involving cultural appropriation can be murky and hard to resolve, but making it an industry standard to communicate and partner with relevant communities; acknowledging where source material comes from; enacting and enforcing policies that protect traditions from unfair use and ownership; and hiring diverse and culturally competent employees are all ways companies and researchers can avoid cultural appropriation. Combating cultural appropriation is not only necessary to maintain a positive public image and customer relations, but it is also a practice that any ethical company should stand behind.
[1] Judith Soto, Hands Off My Heritage: Cultural Appropriation and Trademarks, Trademark Now (Mar. 6, 2019), https://www.trademarknow.com/blog/hands-off-my-heritage-cultural-appropriation-and-trademarks [https://perma.cc/XS86-D4LJ].
[2] Id.
[3] Id.
[4] Id.
[5] Linda Black Elk (@linda.black.elk), Instagram (Sept. 1, 2020), https://www.instagram.com/p/CEmeBMclQzR/ [https://perma.cc/JK4R-ZVG2]; Mike Jozwik (@mushroommikellc), Instagram (Aug. 31, 2020), https://www.instagram.com/p/CEkF7OJnRcl/ [https://perma.cc/V9YF-NZ5F].
[6] Jordan Nutting, After 5 Years of Experimenting, Mushroom Mike Develops Corn Fungus for Mexican
Delicacies, Milwaukee J. Sentinel (Aug. 31, 2020, 6:58 AM, Updated Sept. 2, 2020, 7:44 AM), https://www.jsonline.com/story/life/food/2020/08/31/mexican-delicacy-mushroom-mike-finds-way-cultivate-corn-fungus/3339584001/ [https://perma.cc/9QBL-TBFW].
[7]Intergovernmental Committee (IGC), World Intell. Prop. Org. [WIPO] https://www.wipo.int/tk/en/igc/ [https://perma.cc/257H-J394].
[8] Id.
