By Adam Shul and Louisiana Luke:
Within the fashion industry, there are many challenges related to First Nations fashion, and Intellectual Property (IP) and Indigenous Cultural and Intellectual Property (ICIP). This blog post presents an overview of the main trends found within the First Nations fashion space and provides tips for First Nations fashion designers to protect their ICIP. It also lists services that Terri Janke and Company (TJC) can provide to assist both First Nations fashion designers, and non-First Nations Fashion labels hoping to collaborate with First Nations Designs.
Certain key trends are noticeable within the First Nations fashion space. Firstly, the rise in demand allows First Nations designers to celebrate and actively engage with their culture. Additionally, those who purchase and wear First Nations-designed fashion can carry and transmit the stories and cultural knowledge embedded within the designs. There are also increased opportunities for collaborations between First Nations designers and well-known non-First Nations brands. For this reason, IP becomes an important consideration for First Nations fashion designers in protecting their brand and their culture.
There are many cases involving non-First Nations designers and fashion houses who have ‘taken inspiration’ from First Nations cultural designs without consulting or collaborating with First Nations peoples. Such practices do not only undermine the integrity of ICIP but also strip First Nations communities of control over their cultural heritage and prevent them from receiving economic benefits. These inequitable and exploitative practices reflect the inadequacy of the law both domestically and internationally in comprehensively protecting ICIP rights. Because of these inadequacies, it becomes difficult, but not impossible, to hold well-established brands accountable for disrespecting ICIP.
The rise in demand for First Nations fashion, combined with the increased risk of appropriation driven by a lack of adequate legal protection, means that it can be very challenging for First Nations fashion designers to build and protect their brands. For example, using culturally specific techniques and designs and making them publicly known runs the risk of appropriators reproducing the cultural style. If it is not a copyright infringement, these copycat items can proliferate the market and demean the designer’s brand, and their culture.
TJC is actively participating in reinforcing ICIP and IP rights within the First Nations fashion space. Recently Solicitor Director Dr Terri Janke and Paralegal Louisiana Luke were invited to participate in an informal discussion with the World Intellectual Property Organisation (WIPO) that covered key steps fashion organisations should take when engaging with First Nations designers, peoples, and their cultural heritage. WIPO asked all participants to give comprehensive feedback on relevant areas required to be covered so that cultural appropriation and the stealing of culturally owned designs on an international level is avoided.
Additionally, Dr Janke and Laura Curtis, a Senior Solicitor at TJC were invited by First Nations Fashion and Design (FNFD) on behalf of the ICONIC as part of their incubator program to present a workshop to the participating First Nations Fashion Designers. Laura and Louisiana are also developing and will be releasing a First Nations Fashion Designer’s ICIP guide tailored for fashion designers breaking into the industry and looking to build and establish their brand. As an expert in the area, Laura noted that “there are a number of legal and ethical considerations when sharing culture into a mass fashion market. It is important to have the right agreements and frameworks to protect your brand and culture and establish good relationships.”
Laura’s top tips for First Nations Fashion designers attempting to navigate this space are:
1. Secure your brand with a Trade Mark;
2. Use original designs and graphics to distinguish your brand;
3. Use licence agreements to protect your copyright and ICIP when going into production; and
4. Use a non-disclosure agreement (NDA) when pitching your designs and discussing commercial opportunities.
If you work in the fashion and design space and want to know more or are interested in the services we provide, please reach out to us for further information. TJC can assist with registering trade marks for your brand, help set up your business, draft licensing agreements that cover relevant IP and ICIP considerations, and draft NDAs. We can also review contracts between designers and fashion labels to ensure that they sufficiently protect the IP and ICIP rights of the designer. Finally, we can write ICIP protocols and run tailored workshops for Fashion labels to provide guidance on how to respectfully engage with ICIP for fashion designers and non-Indigenous organisations looking to collaborate with First Nations designers or designs.
L-R: Kuranda-based designer Briana Enoch of label Jarawee, Gunggandji designer Elverina Johnson of Pink Fish, Solicitor Director, Dr. Terri Janke, Mt. Isa designers Dale Bruce and Glenda McCulloch of Myrrdah, and Senior Solicitor Laura Curtis.
Copp, Amanda, ‘“Streetwear Meets Aboriginal Culture” Turkish Designer Accused of Cultural Appropriation’, National Indigenous Television (26 June 2017) <https://www.sbs.com.au/nitv/article/streetwear-meets-aboriginal-culture-turkish-designer-accused-of-cultural-appropriation/59wcdl994>.
Janke, Terri, ‘Appreciate, Don’t Appropriate: It’s Fashionable to Be Culturally Respectful’ in True Tracks (New South Books, 2021)
McNeil, Peter and Treena Clark, ‘“Cultural Expression through Dress”: Towards a Definition of First Nations Fashion’, The Conversation (22 March 2023) <https://theconversation.com/cultural-expression-through-dress-towards-a-definition-of-first-nations-fashion-201782>.
Singer, Melissa, ‘Zimmermann Apologises after Cultural Appropriation Claims’, The Sydney Morning Herald (15 January 2021) <https://www.smh.com.au/lifestyle/fashion/zimmermann-apologises-following-cultural-appropriation-claims-20210115-p56ubi.html>.
Vézina, Brigitte, ‘Curbing Cultural Appropriation in the Fashion Industry with Intellectual Property’, World Intellectual Property Organisation (WIPO) (August 2019) <https://www.wipo.int/wipo_magazine/en/2019/04/article_0002.html>.