MEXICO CITY — The spat began with the June 10 letter written by Mexico's Culture Secretary Alejandra Frausto to New York-based designer Carolina Herrera and her brand's creative director, Wes Gordon. In the letter, Frausto complained about the undue use of traditional Mexican motifs and elements of its indigenous heritage in Carolina Herrera's latest collection, Resort 2020.

The letter, which showed evident frustration, listed its allegations of cultural theft, demanding an explanation for their use. The embroidery for "model 8 and 23," it stated, came from the "Tenango community in Doria, Hidalgo; these embroideries contain the community's very history." It added that "models 11 and 13 include embroidery from the Isthmus of Tehuantepec, which gives identity to women of the region. Lastly models 14 and 16 incorporate the Saltillo blanket." The sarape's history, the ministry wrote, was intertwined with northern Mexico's foundation by the Tlaxcalan indigenous population.

Gordon's reply was that the use of these motifs showed his love for Mexico, while the firm's Instagram account indicated its respect and admiration for Mexican culture. The matter seemed concluded for Carolina Herrera, but not for the Mexican government. Since April, the Senate has been debating amendments to Mexico's Federal Copyright Law to protect the country's indigenous arts, and this dispute may speed up their approval.

Communities have a right to a fair and just distribution of earnings obtained from use their designs.

Proposed changes would remove the existing right to freely use elements of popular culture without due remuneration. This is not the first time couturiers use Mexican designs and embroidery. French designer Isabel Marant was accused of robbing the red and black embroideries of the Mixe of Oaxaca. The blouse Marant designed with those patterns sold for the equivalent of $236 while the indigenous version costly barely 15% of that. Curiously Marant almost faced a lawsuit when another French firm, Antik Batik, claimed they were the owners of Marant's design. Finally Marant proved that her production was in fact inspired by the Oaxacan designs.

There is in fact no record of firms facing penalties for cultural appropriation, plagiarism or failure to pay for use.

Why not?

Liliana Montesinos, a lecturer at Mexico's UNAM university, says plagiarism and appropriation are often confused. The Mexican government, speaking through its senators and the National Institute of Indigenous Peoples (INPI), cites plagiarism, which is related to copyright. Other agencies like Fonart — Mexico's national handicrafts fund — and the Culture ministry speak of cultural appropriation, which is using a cultural element or expressions of a culture while changing their significance.

Despite their difference, says Montesinos, "both are protected. On the one hand there are the cultural rights relating to the worldview of those elements. There is also intellectual property, but the problem is that collective intellectual property is not protected by copyright law or industrial property law, as these only cover individuals."

The traditional Panamanian Guna Mola patterns — Photo: Edwardperspective

Can designs be protected? Montesinos says they can be patented. "There are rights in international treaties, but the problem is they are not recognized in collective intellectual property rights." In cases like those of Isabel Marant and Carolina Herrera, designers usually say they are inspired by or are paying homage to a culture. Montesinos says that if a designer is going to use a country's motifs, "the first thing they should investigate is whether or not they will be violating copyright. The problem in Mexico is that the law says you can use designs from popular culture because they are in the public domain, provided you do not deform them and do recognize their provenance."

Guarantees for indigenous people

The Collective in favour of Craftsmen's Rights (Colectivo en Pro de los Derechos Artesanos) says there are no guarantees to ensure that the human rights of Mexico's indigenous communities are respected. "Their rights are recognized in national and international instruments but there are no legal mechanisms to protect them against third parties in other countries," they say.

The Collective wants public debates to give indigenous people the right to decide whether or not the existing system satisfies their needs and if changes are needed. Montesinos says there are international laws dealing specifically with "indigenous rights, which do recognize collective intellectual property. This is why these designs cannot be merely considered as homage." There was a similar case with a dispute between clothing brand Nike and the Kuna population who lives in Panama and Colombia. The Kuna took Nike to court for using their traditional mola patterns on trainers. Nike canceled the global launch of that particular model.

Ideally, says the Collective, authorities should talk with local communities and seek their permission for use of their designs, with documents to clearly state the scope and benefits of any authorization.

"Communities have a right to a fair and just distribution of earnings obtained from use their designs. It is not just about giving permission," says Montesinos, but also "fair remuneration" for use. The law, she says, must protect designs and "any element of the culture of native peoples or communities," covering authorization for their use, fair remuneration and use "in a manner determined by that community."

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