Intellectual Property and Cultural (Mis)Appropriation: A Reading List

By: Jelani Odlum and Rachelle Mulumba

In honor of this past Indigenous Peoples’ Day, Hispanic Heritage Month, the Black Lives Matter movement, and the ongoing movements to spark societal change through diversity, equity and inclusion, we share this reading list exploring the complex relationship between intellectual property (IP) rights and cultural appropriation / misappropriation. 

Oxford Reference defines cultural appropriation as “the taking over of creative or artistic forms, themes, or practices by one cultural group from another. It is in general used to describe Western appropriations of non‐Western or non‐white forms, and carries connotations of exploitation and dominance.” Cultural appreciation is not the same as cultural appropriation. This is especially important to consider when weighing ethical questions at the intersection of IP rights, ownership, credit, compensation, and legal power. 

The following articles and resources consider these questions in the context of systems and norms protecting IP and innovation, and the tensions they can create with underserved, under-resourced, and indigenous communities.

1. Hands Off My Heritage: Cultural Appropriation And Trademarks, TrademarkNow                                       
   • A quick primer on the “rocky relationship” between cultural appropriation and trademarks. See also: The Wellness Industry Has A Cultural Appropriation Problem — & It’s Not Alone.
2. Cultural and Intellectual Property Appropriation: Disputes Over Culturally-Inspired Fashions, Foley Hoag LLP
   • Examples of when cultural diversity efforts in the fashion industry move into the space of cultural appropriation. See also: British fashion brand Timbuktu accused of ‘cultural appropriation’ for trademarking ‘Yoruba’ (CNN).
3. Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues, American University Journal of Gender, Social Policy & the Law
   • An academic article exploring how the exploitation and devaluation of Black, women, and indigenous peoples in the U.S. has been reflected in the IP system.
4. Colombians Ask: Who Would Dare Patent Panela?, The New York Times
   • An exposé and critique of a sugar corporation’s effort to secure international patents for a method of making traditional Colombian sweetener panela.
5. The Color of Creatorship: Intellectual Property, Race, and the Making of Americans, Stanford University Press
   • A new book by Boston College faculty member Anjali Vats traces intersections between racism and U.S. intellectual property law. You can read a review and discussion of Professor Vats’ book exploring “intellectual property citizenship”, racism and IP law, and the legacy of people of color being “formally excluded as knowledge creators” here. See also: “Racism is baked into patent systems” (Nature Magazine).
6. Documenting Traditional Knowledge –A Toolkit, WIPO
   • A toolkit from the World Intellectual Property Organization (WIPO) on documenting traditional knowledge as “a way of guaranteeing the social, cultural and economic interests of indigenous peoples and local communities.”
7. Black TikTok Creators Are On Strike To Protest A Lack Of Credit For Their Work, NPR
   • A piece touching on social media platforms as tools of cultural appropriation, and the consequences for Black creators.
8. Countering Cultural Appropriation Through Trademark Laws, IPWatchdog
   • An overview of legal tools to potentially combat cultural appropriation through trademarks.

The Michelson Institute for Intellectual Property, an initiative of the Michelson 20MM Foundation, provides access to empowering IP education for budding inventors and entrepreneurs. Michelson 20MM was founded thanks to the generous support of renowned spinal surgeon Dr. Gary K. Michelson and Alya Michelson. To learn more, visit 20mm.org.