Private Law Theory

ABSTRACT
Accusations of cultural appropriation – using cultural symbols from a culture that is not one’s own without consent, understanding, or respect – have sparked fervent debates across social, ethical, and legal perspectives. Beyond debates, there is an early trend of claimants asking courts to rule on cultural appropriation. Scholars who have explored the topic mostly focus on the lack of legal remedy under current law. This Article makes two contributions. First, it offers a novel taxonomy of cultural appropriation based on two spectrums – the cultural symbol’s level of diffusion and the commercial nature of the use. The taxonomy results in four types of appropriations. The article argues that legal remedy in three out of the four types of appropriations is unworkable without significant disruption to long-standing fundamental rights. These three categories are: diffused-non-commercial, diffused-commercial, and distinct-non-commercial. Second, it develops a new theory of ‘cultural passing off’ triggered within the fourth category – a cause of action against commercial use of a distinct symbol that falsely suggests affiliation with an identifiable source community. The Article outlines three elements needed for a successful claim: collective goodwill, commercial appropriation of a distinct cultural symbol, and deprivation of material advantage. This new theory is offered as a workable legal solution requiring relatively feasible legal reform to address a subset of cultural appropriation without disrupting fundamental rights.

Gebru, Aman K, Cultural Appropriation as Passing Off (September 10, 2024).