Theft of Intellectual Property?  Cultural Appropriation Cases in the News!

Introduction

Many people, including intellectual property practitioners, may not be familiar with the concept of “cultural appropriation” so I thought this would be a good blog to provide a general overview.  Basically, cultural appropriation can be considered “theft of a culture for commercial gain.”   Keep in mind, I made up this definition so do not rely on it as a definitive legal definition.   To some, these cases have been termed “appropriation vs. appreciation” of culture.

What is cultural appropriation?

According to wikipedia:

“Cultural appropriation is the adoption or use of the elements of one culture by members of another culture.  Cultural appropriation, often framed as cultural misappropriation, is sometimes portrayed as harmful and is claimed to be a violation of the collective intellectual property rights of the originating culture.  Often unavoidable when multiple cultures come together, cultural appropriation can include using other cultures' traditions, food, fashion, symbols, technology, language, and cultural songs without permission. According to critics of the practice, cultural (mis)appropriation differs from acculturation, assimilation, or cultural exchange in that the “appropriation” or “misappropriation” refers to the adoption of these cultural elements in a colonial manner: elements are copied from a minority culture by members of a dominant culture, and these elements are used outside of their original cultural context—sometimes even against the expressly stated wishes of representatives of the originating culture.”

Some examples cited in the wikipedia post include appropriation of music, dance, sports names (ex. Washington Redskins), dance, costumes, hairstyles, makeup, body modifications and language.   This is truly a unique issue in the age of globalization.  One of the main legal questions would be who has “standing” to file such a lawsuit?

Is there any case law on this?

Aside from the two cases listed below (Beyonce and the Navajo Indians case) I could not find case law on this issue.  This may develop over time. However, here is some language of the allegations being made which is pulled from the cases:

A. Hanover Ins. Co. v. Urban Outfitters, Inc., 806 F.3d 761 (3d Cir. 2015) [unreported decision]

“The underlying amended complaint clearly alleges “personal and advertising injury” to which the insurance here applies. As defined in the policies, “personal and advertising injury” is an injury arising out of “[o]ral or written publication of material that disparages a person's or organization's goods, products or services,” and includes the “use of another's advertising idea in your ‘advertisement,' ” or “[i]nfringing upon another's copyright, trade dress or slogan in your ‘advertisement.  The underlying complaint alleges, inter alia, advertising injuries to the Navajo Nation arising out of Urban Outfitters's':

(1) infringing upon the Navajo Nation's identity, culture, and cache associated with being a producer of authentic Indian products;

(2) disparagement of the Navajo Nation's products;

and

(3) use of the Navajo Nations' advertising ideas.”

B.  Estate of Barre v. Carter (2017)

A. Factual Background In this litigation, Plaintiffs allege that they own a protectable copyright interest in two YouTube videos created by Anthony Barré, also known as “Messy Mya:”

(1) “Booking the Hoes from New Wildings;”

and

(2) “A 27 Piece Huh?” According to Plaintiffs, Anthony Barré was a well-known performance comedian and music artist in New Orleans who published more than a hundred videos of his performances, receiving over two million views on YouTube. Plaintiffs further allege that Anthony Barré produced or was featured in numerous songs with other famous local artists, such as Freddie Ross (“Big Freedia”) and Magnolia Shorty. Plaintiffs argue that Anthony Barré's voice was a unique instrument and inextricably linked to his performance art. Plaintiffs aver that Anthony Barré created “Booking the Hoes from New Wildings” in New Orleans on August 19, 2010, and published the work on YouTube the same day. Plaintiffs point out that the video includes Anthony Barré saying, “What happened at the New Orleans,” which Plaintiffs allege was misappropriated and infringed by Defendants. Plaintiffs also state that Anthony Barré created “A 27 Piece Huh?” in New Orleans on September 3, 2010, and published that work the same day. According to Plaintiffs, that video features Anthony Barré saying, “Oh yeah baby. I like that” and “Bitch I'm back by popular demand,” which Plaintiffs allege was misappropriated and infringed by Defendants as well.”

Plaintiffs argue that Anthony Barré's voice set the tone, mood, setting, and location for “Formation. However, Plaintiffs aver that Defendants failed to secure any license or offer compensation to copy and exploit Anthony Barré's two works. Plaintiffs further contend that Anthony Barré's voice, words, and performance were used and exploited by Defendants to provide a false and unauthorized endorsement of “Formation” and the “Formation World Tour” that created consumer confusion as to Anthony Barré's and Plaintiffs' involvement with Defendants' works.24 According to Plaintiffs, Defendants are liable for $20 million in damages for copyright infringement under the Copyright Act, false endorsements under the Lanham Act, violations of the Louisiana Unfair Trade Practices Act (“LUTPA”), and unjust enrichment under Louisiana law.”

On the other hand, Defendants argued:

“Here, Defendants argue that certain Defendants used audio from Anthony Barré's YouTube videos as “raw material” in the creation of a music video about “black Southern resilience that featured depictions of the history and culture of New Orleans. Defendants allege that the YouTube videos were “only a component” of the music video and live performances, and that Defendants' works “employed new aesthetics with creative and communicative results distinct from” Anthony Barré's YouTube videos. Moreover, Defendants assert that the small clips of the YouTube videos were used for an entirely different purpose than the originals. According to Defendants, in his YouTube videos, Anthony Barré “speaks stream-of-consciousness to the camera as he walks the streets of New Orleans, in one video criticizing several woman he knew, and in the other complimenting a woman's hair. By contrast, Defendants contend, they used the short audio clips for a “highly transformative use” to, as Plaintiffs alleged in their complaint, “create the tone, mood, setting and location of the New Orleans-themed ‘Formation.”

Examples of cultural misappropriation cases in the news

1.  Portland Burrito shop deals with claims of cultural misappropriation

(Kooks Burrito's accused of stealing tortilla techniques from Mexican cooks)

2. McDonald's closes down after allegations of appropriation

(accused of ripping off recipes in United Kingdom)

3.  White-owned restaurants shamed for serving ethnic foods

4. Beyonce deals with claims of cultural appropriation

(And another article discussing cultural misappropriation in a music video)

5.  Urban Outfitters clothing and cultural appropriation

(lawsuit filed – false implication that goods were made by Navajo Indians)

6.  United Nations wants to ban cultural appropriation

7.  White rappers in Hip-Hop

Contact an Intellectual Property Infringement law firm

We can help both Plaintiffs and Defendants in cultural appropriation theft cases.  Call us at (877) 276-5084.