Abstract

Excerpted From: J. Janewa Osei-Tutu, Protecting Cultural Personality, 57 Columbia Human Rights Law Review 342 (Winter 2025) (388 Footnotes) (Full Document).

One cannot use the names or images of famous personalities such as Beyoncé, Taylor Swift, or Elton John without their permission. This is because, in the United States, various state laws allow an individual to prevent the unauthorized commercial use of their identities. Drawing on intellectual property laws and international human rights law, this Article argues that we should also have a right to control not only the commercial use of our individual personal identities but also our collectively held cultural identities.

For example, companies periodically use cultural symbols or names to market and sell their products. Fashion houses and brands, such as Timbuk and Louis Vuitton, have designed and marketed clothing based on traditional ethnic clothing styles or symbols, or named their fashion lines after established cultural groups. This is often done without the knowledge, consent, or involvement of the cultural group. Unlike brands such as Coca Cola, Nike, or Apple, or Taylor Swift, these cultural identities and their corresponding cultural heritages are perceived as belonging to no one and therefore free for anyone to take and monetize.

The commercial use of cultural names, symbols, patterns and other aspects of cultural heritage leads to different types of claims of cultural appropriation and the misuse of indigenous cultural heritage. As the examples will show, responses to claims that a business has made commercial use of a cultural identity are currently addressed through voluntary remedies rather than legal remedies. For instance, media personality and business owner Kim Kardashian faced heavy criticism in 2019 for cultural appropriation for branding her shapewear “Kimono,” which is a type of traditional Japanese dress. She later apologized to the many offended fans and rebranded the shapewear line “Skims.” Similarly, actor Michael B. Jordan pulled the launch of his J’Ouvert rum brand after he was accused of misappropriating the term “J’ouvert,’D’ which refers to part of a Caribbean cultural festival. In a different type of cultural appropriation claim, one which was based on cultural heritage symbols rather than cultural names, fashion designer Isabel Marant apologized in 2020 for selling a sweater that was nearly identical to a traditional Mexican outfit. In each instance, there was public pressure to address and remedy “cultural appropriation,” but it is rarely clear what this means, what its implications are, or what remedies, if any, are available.

Businesses may back down voluntarily, but the law is slow to catch up. For example, at the request of the Principal Chief of the Cherokee Nation, the maker of the Jeep Cherokee vehicle entered discussions with the Cherokee Nation and finally agreed in 2023 to stop using the name “Cherokee” on its iconic vehicle. However, that was a voluntary action, rather than something legally required. By comparison, trademark owners have threatened indigenous companies with legal action, even for the use of local indigenous words. For example, when the two co-founders of Colombian coca beverage company Coca Nasa received a letter from beverage giant Coca-Cola, they refused to discontinue using their name because using the coca leaf to chew and make different beverages has long been part of their indigenous cultural heritage. Coca Nasa makes food, drinks, and supplements made from the coca leaf, which is found in South America and has been part of indigenous cultural and medicinal traditions for generations. Coca-Cola attempted to stop Coca Nasa from selling its coca pola drink in Colombia, where “pola” is slang for beer. In that context, it is simply a name for coca beer. As a trademark, the word would, therefore, be descriptive term from their cultural perspective. When Coca Nasa challenged Coca-Cola on its use of their indigenous heritage and the use of the name “coca,” the company did not respond.

These cultural clashes are notable because, despite the expansion of intellectual property (“IP”) rights, international IP laws have continued to exclude intergenerational cultural heritage from substantive legal protection. While classic IP, such as patents, trademarks, and copyrights, enjoy protection domestically and in cross-border transactions, the same is not true for intangible cultural heritage. IP laws, while frequently criticized by scholars for providing too much protection to IP owners, are also underinclusive--at least in relation to valuable intangible cultural heritage from indigenous communities and local communities from the global south. This allows corporations and those outside the community to capture and monetize this unprotected resource, which means that it is exposed and subject to misappropriation. But why must a cultural group commercialize its identity to protect that identity and why should only corporations enjoy perpetual identity protection through trademark law.

As this Article demonstrates, with some modifications--including adequate flexibility to protect freedom of expression--a new cultural personality right modeled on the U.S. right of publicity could fill this gap. This novel cultural personality right would address the economic and dignitary interests of cultural groups, particularly those whose identities are regularly misappropriated for commercial uses. Drawing on the right of publicity, trademark law, and international human rights law, this Article presents the normative justifications for a cultural personality right to protect collective cultural identities. This proposal would fill a gap in the law by providing a means to prevent the unauthorized commercial use of collective cultural identities and cultural heritage, even if the identities are not used as commercial identifiers by the source community.

Rather than relying on the traditional incentive and innovation-oriented models that dominate IP law, this Article contributes to the literature by theorizing a dignitary model for protecting cultural identities from commercial misappropriation. It does so by drawing on a specific and normatively attractive conception of the U.S. right of publicity that is based in human dignity. This emphasis on individual dignity in controlling commercial uses of identity in U.S. law has been articulated by Jennifer Rothman, a leading U.S. scholar on the right of publicity in the United States.

The approach this Article takes is also distinct from existing literature on traditional knowledge and traditional cultural expressions. Such literature often aims to create sui generis copyright and patent-style protections for indigenous traditional knowledge and traditional cultural expressions by characterizing this knowledge as innovative. Taking a different approach, this Article uses international human rights framing to underscore the dignitary aspect of protecting individual and collective cultural identities. The right of publicity, also known as image rights in the European context, provides the tools through which this objective can be achieved. The proposed cultural personality right would protect interests similar to those protected by the contemporary right of publicity, which is admittedly quite variable throughout U.S. jurisdictions as well as internationally. The primary aim of this Article is to provide the normative justifications for the proposed cultural personality right, with a brief exposition of the mechanisms for implementation.

While this proposal aims to justify a new right to prevent the commercial misuse of collective cultural identities, it does not purport to provide a comprehensive solution to the complex question of how to provide legal protection for all intangible cultural heritage, traditional knowledge, and traditional cultural expressions. Rather, it is limited to cultural identities that are used for commercial purposes, particularly in artistic fields such as fashion and design, where unauthorized borrowing of collective cultural identities is prevalent. Part I explains the problem of the misappropriation of cultural heritage and differentiates it from the common understanding of cultural appropriation. Part II identifies some of the challenges of protecting intangible cultural heritage under the current legal structures, before defining the collective cultural persona. Part III illustrates the ways intellectual property laws protect dignitary interests and personal identities, while Part IV draws on a dignity-based version of the U.S. right of publicity and adopts a human rights framing to propose a new cultural personality right. Part V concludes.

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This Article has sought to present theoretical justifications for creating a cultural personality right. The scope of the right has been briefly outlined in this Article, but the precise application and limitations of such a right are important questions which will be addressed further in subsequent works.

As this Article has explained, classic IP rights have received harmonized protection under international law, while efforts to protect intangible cultural property have been thwarted. Yet, one area where developing countries and indigenous communities arguably have the potential to generate wealth is in relation to their cultural heritage and related products. Drawing on a dignity-based version of the U.S. right of publicity, trademark law, and human rights law, this Article has articulated the normative foundations to establish a legal framework for a cultural personality right. This Article focuses on the challenging first step of justifying a new cultural identity right rather than detailing the precise scope and limitations of such a right.

This proposal draws heavily on a dignity-based U.S. right of publicity as articulated by Professor Rothman, but it diverges from her conception by focusing on cultural groups and international human rights. This proposal for a cultural personality right turns to international law because protecting intangible cultural heritage across borders requires both domestic and international solutions. Indeed, many nations have domestic laws that protect their intergenerational cultural heritage, but there is a lack of international cooperation to protect cultural identities and symbols from commercial misuse. Without international recognition and enforcement, the domestic protection of intangible cultural heritage has limited effect. However, as this Article has argued, the existing IP framework can be modified to develop and incorporate a new cultural personality right that has its basis in human dignity.

Professor of Law, University of Miami School of Law.