Christopher J. Sprigman

For several decades now, a debate about whether or how to regulate cultural appropriation, especially of indigenous creations, has been brewing at the edges of American IP scholarship. This topic has, however, never really broken through—that is, it has never surfaced as an issue that captures the attention of the field in the U.S. as a whole. It is heartening to read recent contributions to the literature from scholars including Margo Bagley, Sonia Katyal and Angela Riley, Jessica Kisser, Ruth Okediji, Michael Goodyear, Trevor Reed, and Aman Gebru who recommend some form (often narrow) of protection against cultural appropriation and/or the unauthorized use of traditional knowledge. Another smaller recent legal literature raises questions about such protections (including noting weaknesses in the normative case for legal rules to restrict cultural appropriation).

Of these many worthy contributions, I especially want to praise Aman Gebru’s article Remediating Cultural Appropriation. Gebru provides three invaluable services to the literature on cultural appropriation. The first is a careful articulation of the various possible harms and benefits of cultural appropriation. This analysis is fair-minded and inclusive, reviewing and critically assessing the literature that fills out both sides of the ledger. Second, Gebru proposes a taxonomy to assess varieties of cultural appropriation claims with particular focus on two factors: the cultural symbol’s level of “diffusion” (i.e., is the element shared by other cultures, or is it strongly identified with a single originating culture?) and the extent to which the use is commercial in nature.

Of the four categories of cultural appropriation that Gebru proposes, he advocates legal intervention to limit appropriation as to only one, namely, commercial uses of cultural elements that are distinctive of a single culture. For that category, Gebru favors an approach based on trademark concepts although he proposes limits analogous to laws such as the U.S. Indian Arts and Crafts Act, which is, essentially, a truth-in-labeling requirement. For the other categories, the cost of even narrow cultural appropriation limits, Gebru argues, are too high in terms of free speech harms and the violence that would have to be done to numerous legal doctrines, such as standing rules, to permit judicial enforcement. In a brief but valuable part of the article, Gebru details a number of lawsuits that are, at their core, about cultural appropriation, but which avoid making cultural appropriation claims directly because they simply do not fit under existing law.

Third and finally, Gebru supports his recommendation for focused legal intervention with a theory of “cultural passing off.” He proposes a framework for enabling legal claims against commercial use of a distinct symbol that falsely implies affiliation with an identifiable community. Gebru draws on the trademark passing off cause of action and adapts it to the cultural appropriation context, laying out elements of collective goodwill, commercial appropriation of distinct cultural symbols, and deprivation of material advantage as the claim’s core elements. This framework, Gebru argues, addresses harmful cultural appropriation while preserving the beneficial dynamics of cultural diffusion.

In a final part of the article, Gebru illustrates the application of his framework with some examples. One that stands out is Jeep’s use of the term “Cherokee” for one of its SUVs. Gebru argues that all elements of the cultural passing off claim are satisfied in this case. The “Cherokee” name enjoys “collective goodwill”—i.e., its value inheres in large part from its association with a distinct (and geographically and culturally cohesive) social group. The use also, Gebru argues, involves misrepresentation, in that there is no consent, affiliation or other connection with the group. And finally, there is deprivation of material economic advantage, arising from the lost licensing opportunity.

Gebru proposes that a cultural group pressing a “cultural passing off” cause of action must show, among other elements, that the appropriation has caused it to suffer a material “deprivation of economic advantage.” But establishing that element will often, if not always, involve some circularity—the assertion often involves a foregone licensing opportunity, but the licensing opportunity exists only if there is a right to license, and that is the very thing at issue in the claim. This is an important element of my skepticism that the framework is either workable or normatively justifiable.

A different critique can be aimed at the misrepresentation requirement. Gebru frames it as an absence of consent, affiliation, or other connection with the group whose cultural identifier is used. But that does not track with passing off law, which traditionally has thought of misrepresentation as creation of the impression that there is such a connection.

Despite my reservations about this proposal, I admire Gebru’s article. It is the most helpful summation of a pro-intervention position that I’ve seen, even if the intervention it recommends is narrow. And importantly, Gebru is careful to deal with opposing arguments, and to be generous to them. And this, at bottom, is perhaps the most important of Gebru’s contributions. He has given us a model for engagement on a topic that, over the years, has failed to gel into the fascinating and productive debate that we could be enjoying within the community of IP scholars.