One Can(nes) and one must talk about - Plagiarism, Cultural Appropriation and Cultural Appreciation
Let's open the dialog on cultural exchange in fashion and arts with the first primer on these essential concepts that involve vital questions regarding ethics and IP
My ongoing journey in the arts and then in law
~ My skin in this game is my personal connection to the above mentioned concepts, that have given me the agency to hold discussions around two characteristic traits I stand for as a lawyer and more importantly, as a human being - respect and accountability in the arts as well as the law. ~
I feel fortunate to be born into a family of educationists in Udaipur, a paradoxical city : the luxury capital of India, an oasis of art and culture and yet a city with one of the lowest literacy rates in the country with major disparity between male and female children. Our scholastic atmosphere at home reflected the importance of creative artistic traditions in intellectual development as my earliest memories are of attending dance recitals and music concerts that led me to be professionally trained in the classical dance form, Bharatnatyam.
I decided to integrate my interests in art with a career in law because of one defining incident. In the late 90s, a music company based in Mumbai, plagiarised many original music compositions of my Bharatnatyam Guru and recorded music cassettes without giving him credit or compensation. He lacked the resources to obtain an authoritative judicial decision. Furthermore, owing to numerous loopholes in the establishment of the “first use” concept in the Copyright legislation in India and due to extensive duplicative reproduction in identification of the original author due to unauthorised copying and piracy, he died without receiving due recognition.
For the country where musicians, singers, and songwriters are household names, it is unnerving that artists do not always have the assurance of a comfortable living. There persists a sharp disparity not only between the glitterati of the film industry and the hundreds of smaller artists who are out of the mainstream entertainment industry but also within the entertainment industry.
Javed Akhtar, the celebrated poet, lyricist and legislator of our country, in an impassioned speech before the Parliament spoke of Khemchand Prakash, a legendary composer whose wife was found begging at a railway station after his demise. It left an indelible mark on my mind. His is not an uncommon fate as several other illustrious and anonymous artists alike have been reduced to penury because of their inability to negotiate with music companies. He compared these artists to stalwarts like Paul McCartney who wrote just 27 songs in his entire lifetime, yet generated $16 million in royalty fees and Elton John, who made $22 million in a year without composing a single song in the last five years, preceding that year. I’m in consonance with Mr. Akhtar’s stance, as I believe that copyright protection has a socio-economic effect where the short end of the stick is borne by the marginalised. In our avant-garde digital world, copyright laws are still governed by “artificial scarcity” in the physical world and lobbyists’ entreaties usually trump the greater good during legislative deliberations.
My work as a lawyer helps me understand the nuances of intricate details of court work giving me a taste of the procedural work that often takes centre stage in a case rather than the carefully crafted theories of Copyright, where accountability and respect take centre stage. I spoke earlier about the intersectionality of causes (while discussing the definition of a“changemaker”) and creative arts are no different. It is crucial to think critically about the intersections between creative arts, various legislations, ethics and policies, as well as the freedoms. Owing to the intellectually stimulating atmosphere at home, I thoroughly advocate for the Freedom of Speech and Expression - an integral part of the creative arts. In my context of being a multi-jurisdictional lawyer witnessing arbitrary bans on the same lately, I continue to associate with organisations globally, that protect original work and the right to express it freely.
..And that is my ongoing journey in the arts and then in law.
Setting : Cannes Film Festival and the Cannes Red Carpet
I could not think of a more fitting setting than the Cannes Film Festival and the Cannes Red Carpet to delve into the complexities of plagiarism, cultural appropriation, and cultural appreciation. This is due to several factors, but predominantly because it provides a unique microcosm that brings together and celebrates various expressions of art under one roof.
Of the two major factors - the first factor is that Cannes is a platform that attracts a global audience and creative minds. The high stakes environment of film festival adds another layer of complexity. Awards and international recognition are on the line, intensifying the scrutiny of filmsFilmmakers and celebrities from across the world converge here, bringing with them diverse cultural influences. This cross-pollination can be a breeding ground for both inspiration and insensitive imitation. For instance, a rising star director from South Korea wins the Palme d'Or at Cannes with a film that bears an uncanny resemblance to a cult classic from the French New Wave. Accusations of plagiarism could potentially erupt, sparking debates about originality, influence, and the fine line between homage and uncredited copying. This scenario highlights the importance of acknowledging inspiration and ensuring creative works are distinctly authored.
And the second important factor is that, the Cannes red carpet is no stranger to scrutiny controversies either. The intense media spotlight puts celebrities' fashion choices under a microscope. Cultural appreciation can turn into appropriation in a jiffy, if these choices are made without proper context or respect. For example, a renowned fashion house or a stylist might showcase a collection that incorporates traditional African fabrics. This could be a beautiful homage to that culture, sparking appreciation for its artistic heritage. However, if the collection is presented without context or respect for the traditional meaning of the fabrics, it could be seen as cultural appropriation. Imagine a sacred garment transformed into a mere fashion statement, stripped of its deeper significance. In this way, the red carpet becomes a platform to discuss the responsibility creators have when drawing inspiration from diverse cultures.
By examining the expressions of art here, we can gain valuable insights into how cultures influence each other, inspire one another, and navigate the sometimes-murky waters of adaptation and imitation. Especially for budding entrepreneurs aiming to make a positive impact - this edition explains these three concepts and what it takes to steer clear of plagiarism and cultural appropriation and further embrace cultural appreciation.
Plaigarism
University of Oxford lays down the framework within which one must operate while defining plagiarism succinctly. While this is in reference to academic work, this can be applied to any medium, including film and similar forms of expression that involve creative works.
To see how it plays out in film, one can study the 2012 case of actor Shia LaBeouf’s short film Howard Cantour.com which premiered at Cannes and was accused of plagiarism after it came online. Shortly after it became apparent that LaBeouf had included dialogue from Daniel Clowes' story Justin M Damiano. In 2013, LaBeouf went on to tweet an apology for using his work and not crediting it properly -
"Copying isn't particularly creative work. Being inspired by someone else's idea to produce something new and different IS creative work.... In my excitement and naiveté as an amateur filmmaker, I got lost in the creative process and neglected to follow proper accreditation.... Im embarrassed that I failed to credit Daniel Clowes for his original graphic novella Justin M. Damiano, which served as my inspiration.”
- Shia LaBeouf
Often plagiarism is used synonymously with copyright infringement as it is generally thought to amount to the same thing. But they are two entirely different things and it is crucial to bear the distinction in mind. WIPO makes the distinction between the two clear - copyright protects works embodying intellectual output. The works must exist in a material form. Copyright has as its subject matter the material expression of intellectual output, not the ideas, information, etc. embodied in the material expression. As evidenced in the dictionary definition, plagiarism additionally covers thoughts, inventions, ideas, and the like. All these conceptions are not, per se, protected by copyright. Plagiarism is thus a wider concept than copyright infringement. In a sense, copyright infringement may broadly be considered to be a species of the genus “plagiarism.”
The red carpet can see instances of plagiarism with stylists replicating iconic looks from the past without proper attribution. Within this framework, while plagiarism in designs is relatively easily identifiable, it is not so in films. Plagiarism in film isn't just about stealing a complete story. Filmmakers might "borrow" plotlines, character arcs, or even specific scenes from existing works without crediting the original creators. This can be tough to spot, especially with a twist in setting or genre. Legal issues arise when the copying is too close, leading to lawsuits and damaged reputations. Plagiarism and Intellectual Property rights violations can be costly headaches in the film industry. Ethical violations creep in when filmmakers use unlicensed music or footage, or even steal ideas from documentaries or historical accounts without attribution. All of this undermines creativity, hurts creators financially, and damages the industry's reputation for originality.
Cultural Appropriation Vs. Cultural Appreciation
Red carpet fashion often features designers and celebrities incorporating elements from various cultures. This can be a beautiful celebration of diversity (appreciation) if done thoughtfully. However, if it's done in a way that is disrespectful or stereotypical (appropriation), it can cause offense. Appropriation happens when a dominant culture takes elements from a minority culture without understanding or respecting their significance. On the Cannes red carpet for instance, this could look like a designer using traditional clothing from a specific culture in a way that's seen as disrespectful or costume-like. Appreciation is when someone from outside a culture shows respect and understanding when incorporating elements into their work. For example, a designer might collaborate with artisans from another culture to create a piece that celebrates their heritage.
Professor James Young, Professor of philosophy at University of Victory and author of Cultural Appropriation and the Arts observes that it is important to understand the historical context at all times. He states that -
“Unobjectionable appropriation begins with genuine appreciation which involves understanding. If one understands a cultural product, one is unlikely to use it in offensive or otherwise objectionable ways. For example, one will be less likely to misuse something that is considered sacred if one understands it. Permission may be required in some situations. Deference to and respect for the experts in a culture is essential. This involves not presenting oneself as an expert.”
Context is certainly key. Followed closely by knowing how to strike a balance.
Here, Professor Susan Scafidi, founder and academic director of the Fashion Law Institute at Fordham and author of Who Owns Culture? Appropriation and Authenticity in American Law - gives us the pinpointed method of understanding the demarcation line - when it stops becoming cultural appreciation and slide into appropriation. She says that -
“It’s perfect to describe the line between appropriation and appreciation, or perhaps misappreciation, as a line in the sand because it doesn’t stand still. It shifts with time and space. In the sense that culture itself is very fluid and it is constantly shifting. I always come back to what I like to call the rule of the ‘three S’s’, which stand for source, significance and similarity”.
Vanya Córdova takes this line of thought further and discusses appropriation by emphasising the limits between how far can artists or designers go because a very fine line stands between: a) paying homage to other exotic cultures and b) appropriating those cultures while taking advantage of them by mishandling their ancestral knowledge.
In cases of appropriation when the line is crossed, the predominant issue is that of non-registration of ancestral designs by indigenous communities, that find themselves being exploited in such matters. The 2003 UNESCO Convention on the Safeguarding of Intangible Cultural Heritage provides some kind of protection, which does not amount to intellectual property protection and does not give a legal basis to sue anyone for borrowing any form of design. On this point, Vanya observes that interestingly “indigenous people do not view their heritage in terms of property (this being something that has an owner and is used for the purpose of economic benefit), they value their heritage in terms of community which carries certain responsibilities; such as showing respect and intertwining their cultural expressions with the preservation of reciprocal relationships with the environment.As a result, they do not have the need to register their intellectual property rights.” Subsequently, these instances do not end up in a court to further discuss the issue of IPR rights and develop binding precedents on the matter.
(This instance of cultural appropriation was suppressed rather quickly to mitigate reputational damage) - in 2019 during the Canned film festival, popular global lifestyle and hospitality brand, Nikki Beach hosted a party designed by Vision Air Events as part of a beachfront residence, that was titled “OJIBWE / WHITE PARTY”. This instance highlighted the blatant cultural appropriation of IP of indigenous people at a global event. Native American headdresses and Ojibwe dream catchers are significant cultural items, and wearing them without understanding their meaning can be disrespectful.
Diet_Prada, an Instagram based fashion watchdog group reported with pictures that this party featured a tipi entrance and costumed performers/hosts in Coachella-esque misappropriations of Native American garb (among other amalgamations of indigenous imagery). Who knew dream catchers could double as headdresses and acrobatic hoops? Fortunately, many tribal names are protected in the same way brand names are. But ultimately, the Ojibwe tribe did not file suit for the usage of their tribal name and the question of their intellectual property and historic legacy remained undiscussed. Even though, International agreements like the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) try to address these issues, but enforcement can be challenging.
In conclusion
The worlds of art and law, though seemingly disparate, share a common thread: the pursuit of originality and respect. As a lawyer with a deep appreciation for the arts, I navigate the complexities of Copyright infringement and plagiarism, ensuring creators receive due credit for their work.
The Cannes Film Festival exemplifies this delicate balance as it is a celebration of art in all forms. It's a platform for diverse creative expressions, but where inspiration can tip into uncredited copying, if one is not aware of these concepts. Similarly, the red carpet showcases cultural exchange, yet insensitive appropriation can be disrespectful. Understanding the line between appreciation and appropriation is crucial, as highlighted by Professor Scafidi's "three S's" - source, significance, and similarity.
By respecting intellectual property rights, collaborating with artisans from diverse cultures, and approaching inspiration with sensitivity, one can ensure that their work celebrates creativity and fosters understanding. It is quintessential to remember, originality thrives on a foundation of respect and accountability. The journey towards impactful entrepreneurship begins with acknowledging the voices and expressions that came before us.