Mexico Must Do More to Protect Indigenous Fashion Designs, Experts Say
“Appropriate credit” is what Mexican communities and government officials are increasingly demanding fashion brands that make unauthorized use of Indigenous designs or symbols should give to impoverished communities.
MEXICO CITY — Mexico must work harder to protect Indigenous fashion designs against a plethora of global brands charged with borrowing or culturally appropriating artisan creations for years without giving credit, said lawyers and industry observers.
Their comments came as the Oaxaca Artisans Institute in Southern Mexico charged Australian clothing brand Zimmermann with plagiarizing Mazatec ethnic community patterns and designs in its “Pictures, the Riders Paneled Tunic Dress and Wide Brim Boater” blouse, part of its resort 2021 collection.
“The cross-stitched embroideries represent different symbolic elements like birds and flowers that reflect the nature of their communities, framed with different color stripes that distinguish one community from another,” the institute alleged in a statement last month.
The action threw the increasingly thorny debate of cultural appropriation back into the limelight after other international labels — most notably Isabel Marant, Carolina Herrera and Zara — have been entangled in similar accusations in Mexico, fueling uproar on social media.
The Oaxaca institute claimed Zimmermann also borrowed elements of the Jalapa de Diaz huipil, or traditional community outfit, presenting “big similarities” to artisans’ hand-sewn patterns “displaying natural exuberance, such as branches, flowers and birds, that fully enwrap the huipiles.”
“We are making an energetic call for Zimmermann to explain the iconographic elements and techniques used in its resort-swim 2021 collection and ask for the recognition of the artisan work of the Cañada and Papaloapan communities,” the institute demanded.
Mirroring Marant, who was forced to issue a mea culpa last year, Zimmermann quickly apologized, posting the following message on Instagram: “Zimmermann acknowledges that the paneled tunic dress from our current swim collection was inspired by what we now understand to be a traditional garment from the Oaxaca region in Mexico. We apologize for the usage without appropriate credit to the cultural owners of this form of dress and for the offense this has caused.
“Although the error was unintentional, when it was brought to our attention today the item was immediately withdrawn from all Zimmermann stores and our website. We have taken steps to ensure this does not happen again in the future,” the company said.
“Appropriate credit” is what Mexican communities and government officials are increasingly demanding fashion brands making unauthorized use of Indigenous designs or symbols should give to impoverished communities, many of whom are completely unaware that their creations appear on international fashion runways.
But their calls — including one from Mexico’s Secretary of Culture Alejandra Frausto Guerrero, who last fall issued an ultimatum that Mexico will no longer tolerate cultural appropriation without due credit — so far do not seem to have stopped global brands from using Mexican motifs and patterns in their designs. Experts said this is likely to continue until the country’s intellectual property legislation is sharply overhauled, Indigenous groups gain proper representation and more politicians join the cause for a much more coordinated campaign to make global brands accountable for plagiarism.
“The problem is the laws are deficient and lack attention from lawmakers and government institutions,” said intellectual property attorney Joaquín Elizalde. “Procedures are long and costly and many of these communities just can’t pay them.”
He noted that the National Institute of Author Rights (Indautor), the first instance to hear an appropriation clam, is being merged with Mexico’s Industrial Property Institute, or Impi, to shore up public funds, making the process to file a claim and eventually have it heard or compensated by a local or even international court more ambiguous and difficult to follow. “The [legal] community is taking this badly,” Elizalde claimed. “It’s going to be harder to pursue any claims with fewer people and a smaller budget.”
Mexico’s intellectual property statute, Ley de Protección de La Propiedad Industrial, “must be redesigned to consider the geographic, cultural and social conditions of the country’s Indigenous communities to immediately compensate them for damages and that’s simple enough for the ethnic community to claim,” according to Elizalde.
The law states a foreign brand shown to violate the intellectual property rights of a Mexican community must pay a fine. But ironically, the proceeds of such a penalty, if ever collected, must first go to Mexico’s coffers before it is doled out to the affected communities.
“It’s a two-step process when it really should just be one,” Elizalde explained, adding that the actual steps to file and pursue a claim are also ambiguous. Theoretically (as formal suits have not yet been launched), “the government would collect the fine and then the community can later ask a civil judge for compensation. This would be a separate process that could take three to four years with attorney fees running as high as 60,000 pesos [or $2,900 at current exchange].”
Making matters worse, Indigenous communities don’t typically have the means to hire an experienced legal representative to lobby for their rights, Elizalde noted, adding that such representatives are hard to find as the prospect for such cases don’t promise much profit for law firms.
Calls to modify the law come on top of a decree proposed by Mexican Sen. Susana Harp. The senator — who has helped spearhead claims against foreign firms, most notably Marant (who was twice criticized for using Mexican designs, in 2015 and 2020) as well as Carolina Herrera, criticized for employing Hidalgo and Coahuila community elements in her 2020 resort line — launched the National Law to Protect the Culture and Identity of Indigenous Communities and Groups in spring 2019. While Mexico’s Senate overwhelmingly ratified it, the lower Chamber of Deputies has failed to review it because of the pandemic. In Mexico, new laws must first win the Senate, then go to Deputies before looping back to the Senate for final approval.
“This law could complement the Industrial Property Law, but it does not have enough teeth to stand on its own,” said another intellectual property lawyer following the proposal, who requested anonymity.
One way to beat the convoluted legal process to mount a claim would be to empower communities to learn and understand their copyrights and then have them pressure the government — or an international advocacy group — to help fight for them, experts said.
“The communities have to step up pressure with their popular representatives and politicians and/or send a claim to the Inter-American Commission on Human Rights to have their cases heard,” Elizalde said, adding that advocacy groups could also join forces to institutionalize the cause. “The National Institute of Indigenous Communities and the National Institute of Arts and Literature, as well as academic and other organizations, should get involved in pressuring legislators that are sensitive to these issues to propose a decree to overhaul the law.”
Rosalba Elizalde, a lawyer advising on the Indautor/Impi merger, agreed communities face huge challenges to have an appropriation case heard or challenged.
Legal technicalities aside, Mexico’s ethnic communities are so diverse that it’s incredibly complex to register a copyright for hundreds of designs that also mirror or overlap each other across regions.
“If you register a certain drawing or embroidery, many other groups may have the same design, so this makes a claim difficult to escalate,” Elizalde, who is not related to Joaquín, explained. To avoid this problem, a community should appoint a representative with local fashion and intellectual property experience, she added. Finding such a person — or entity — is much easier said than done, however. So to more efficiently tackle cultural appropriation, Mexico must bolster its execution powers instead of just demonizing fashion brands, according to Elizalde.
“The government wants to look like they are protecting Indigenous groups, which is a good thing, but its [execution] systems are not working and nothing actually works,” Elizalde noted. “The government could also offer training or workshop courses to community representatives to learn their IP rights and how to negotiate them. That way, they can reach out to the brands and forge an agreement before they copy them.”
Cándida Fernández de Calderón, who leads Fomento Cultural Citibanamex, in charge of protecting cultural heritage, agreed “government regulations should force collaborations between artisan communities and fashion brands” before they come up with look-alike designs. Without this, community rights will be left to law firms, many of which are “uneducated about these issues.”
Observers said several collaborations have already been struck to great success, notably one between Christian Dior and Mexico’s Mariachi [folklore singer] communities that enabled the fashion house to use “escaramuzas” women mariachi suits to dress models mounted on imposing white horses for its 2019 cruise collection show. Last year, Converse hired Mexican designer Sentrock to roll out a footwear capsule collection called Mi Gente [My People] paying tribute to successful Latin American youngsters.
Meanwhile, as plagiarism issues continue to arise, Mexico’s left-wing administration may step up action to safeguard local talent, especially as more politicians see commercial value from ethnic fashion.
“They are starting to realize that cultural creativity generates money, which is why they are taking more action against violators,” Elizalde noted.
Just like artisan spirits tequila or mezcal, or popular novellas or soaps, Mexico could gain from building an industry around Indigenous clothing, footwear, or accessories, she added. “Like chocolate in Belgium or olive oil in Spain, it’s possible to develop an industry if we can find the right ambassador. This could be a designer or politician.”