About Cultural Mis/appropriation

Cultural Appropriation

The interest in cultural appropriation started to grow in the early 2010s and has grown significantly since the mid-2010s. Susan Scafidi, the author of “Who Owns Culture?” and founder of the Fashion Law Institute, discussed cultural appropriation in the early 2000s when it was not a popular topic of discussion yet. Scafidi defined cultural appropriation as the “taking—from a culture that is not one’s own—of intellectual property, cultural expressions or artifacts, history, and ways of knowledge.” In 2018, “cultural appropriation” was added to the Oxford Dictionary as “the unacknowledged or inappropriate adoption of the practices, customs, or aesthetics of one social or ethnic group by members of another (typically dominant) community or society.” 

Cultural appropriation typically occurs when there is taking by a dominant group (aka majority group) of the culture of a subordinate group (aka minority group or source community). 

There are multiple ways how cultural appropriation can happen, which includes:

1. Commodification: A member of dominant group profits, economically or socially, by taking a cultural product from a subordinate group. 

2. Misrepresentation: A member of the dominant group takes a culture of a subordinated group and changes its use, meaning, and value by treating it with disrespect. 

3. Internal Loss: Dominant group separates a cultural element of a subordinate group from its original meaning.

4. Dominant group adopts a cultural element of a subordinate group without consequences, or with profit, while members of the subordinate group face backlash and discrimination for the same cultural element.

Formation of Culture

Culture can be formed in various ways: through immigration status, religion, economic opportunity, domestic adversity, regional and historical ties, poverty and violence, or personal hardship. 

Cultural products may be created through “public ceremony or private interaction, intentional design or unstudied behaviors [and] [o]ver time, these creations become associated with [the source communities’] cultures.” Cultural products may include, but are not limited to:

• Cuisine
• Dress
• Music
• Dance
• folklore, 
• Handicrafts
• Images
• healing arts
• Rituals
• Performance
• Natural resources
• Language
• Hair 

Cultural Appreciation vs. Cultural appropriation vs misappropriation

Cultural appreciation:

Cultural appreciation is shown when one is genuinely interested in another’s culture and seeks to understand and learn the culture. Merely taking and copying a culture and saying it’s out of inspiration and appreciation is hardly considered a cultural appreciation. If the subordinate group (source community) feels offended and violated by the outsider’s use of the culture, it is hard for the outsider—usually in a position of greater privilege—to say it was cultural appreciation. Often the line is crossed from appreciation to misappropriation when money and profits get involved—when one appreciates but also uses culture for one’s own gain, without permission and without giving back to the culture that was taken from. 

Cultural appropriation vs misappropriation:

The terms “appropriation” and “misappropriation” have different dictionary meanings: appropriation refers to the act of taking while misappropriation refers to a wrongful act of taking, aka, stealing. In the cultural appropriation context, appropriation is often used interchangeably with misappropriation. In academics, however, cultural appropriation is often distinguished from cultural misappropriation. 

When is taking not stealing? For example, under the United States copyright law, one can copy a copyrighted work and not be subject to copyright infringement if the use falls under the “fair use” exception. The fair use analysis varies based on the details of the fact but some of the factors that are considered are the purpose of the use, nature of the copyrighted work, the amount and substantially of the portion used, and how the use affects the value of the copyrighted work. Similarly, cultural appropriation may be a rightful taking depending on the context.

*Please note that there is no law protecting culture, such as the copyright law that protects certain creative works. Therefore, the line between appreciation, appropriation, and misappropriation is blurry and that’s why discussion of cultural appropriation often becomes contentious. Unified for Culture advocates for a legal mechanism where cultural products are given the same or similar protection that is warranted in a copyrighted work under the copyright law.

  What makes an appropriation a misappropriation depends on various factors such as the significance (or sacredness) of the cultural product, the source, and similarity (Susan Scafidi’s “the 3 S’s”). Check out the Cultural Appropriation Checklist here. The intention and nature of the taking also come into play when assessing the appropriateness of the appropriation. If the taking transforms the cultural product or the taker intends to adopt and subsume the cultural product into one’s own culture—“by denying the origins of a cultural phenomenon, by treating it disrespectfully [or] by diminishing its use in the source culture,”— the taking will likely be in the form of misappropriation. 

*Cultural appropriation is used interchangeably with cultural misappropriation. 

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Resources

1. Google Trends, https://trends.google.com/trends/explore?date=all&q=%22cultural%20appropriation%22 (last visited Feb. 4, 2022). 
2. Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (2005).
3. New Words Notes March 2018, OED: Blog, https://public.oed.com/blog/march-2018-new-words-notes/ (last visited Feb. 4, 2022).
4. Susan Scafidi, When Native American Appropriation is Appropriate, TIME (June 6, 2014 4:43 PM), https://time.com/2840461/pharrell-native-american-headdress/.
5. Susan Scafidi, Intellectual Property and Cultural Products, 81 B.U.L. Rev. 793, 814 (2001).
6. What is Cultural Misappropriation and Why Does it Matter?, Roger Williams University: Library Blog (March 26, 2021) (“Cultural appropriation (or cultural misappropriation) is defined as “the adoption or exploitation of another culture by the more dominant culture.”
7. Why are the Terms “Cultural Appropriation” and “Cultural Misappropriation” used Interchangeably?, Quora (Dec. 5, 2017), https://www.quora.com/Why-are-the-terms-cultural-appropriation-and-cultural-misappropriation​​-used-interchangeably (see the answer by Michael Jacobs).
8.  Mathias Siems, The Law and Ethics of “Cultural Appropriation,” 15 Int’l J. of L. in Context, 408, 17 (2019).