ABSTRACT
Licensing and contractual agreements may be a solution to the inappropriate cultural appropriation of heritage. In fashion, source communities’ designs and names are often appropriated by contemporary fashion brands and luxury brand goods companies without credit, collaboration, or financial remuneration. Existing in the context of cultural heritage law and intellectual property law, licenses and contracts can, in some instances, prove successful in carving source communities’ traditional knowledge, expressions, folklore, and designs out of a public domain and into a legal framework for the safeguarding of their cultural value. While the scope of intellectual property legal rules and their application to heritage may differ in source nations and market nations and produce varying levels of bargaining success, Navajo Nation v. Urban Outfitters, in which a Native-American tribe leveraged its trademark rights and the truth-in-advertising Indian Arts & Crafts Law to prevent the retailer Urban Outfitters from selling a variety of unauthorized merchandise bearing the Navajo name and designs, eventually settling the suit and entering into a supply and license agreement, provides an aspirational example. But alongside the role of licensing and contracts in frustrating cultural appropriation is their less discussed use by often-appropriating fashion brands and luxury brand goods companies themselves to support the cultural significance of their own contemporary fashion design objects. Licensing and contracts play a far greater role than might be expected in shaping our cultural interest in these fashion design objects and their status as future cultural heritage. Fashion brands and luxury brand goods companies use licensing and contractual agreements to control the dissemination of trademarks, know-how, designs, and their material iterations, to structure collaborations with local artisans, artists, and museums and to support museums’ and archives’ collections of fashion design objects as cultural heritage. Are we privileging brand identity over community identity when we allow these agreements to recognize fashion design objects’ as heritage? Can contracting with contemporary artists for fashion designs create future heritage? Do these agreements, and their specific clauses and structures, compromise the cultural value of traditional craftsmanship apart from the contemporary fashion design object? Are these agreements about increasing market share or reputation, or a genuine desire to safeguard heritage? Is brand heritage the same as cultural heritage? Using a comparative legal methodology and various case studies, from Ferragamo and Dolce & Gabbana to Yves Saint Laurent, Tod’s, and more, this chapter explores these questions and the important, nuanced uses of licenses and contracts for contemporary heritage.
