Cultural appropriation and microaggressions are common complaints on campuses across the country, including most recently an allegation of cultural appropriation raised after a drum line formed at an event at UC Davis. Now, Miami law professor J. Janewa Osei-Tutu has suggested codifying cultural appropriation claims as copyright violations. It is the type of incredible proposal that is eagerly embraced inside, and largely ignored outside, of higher education.
In her paper “Protecting Cultural Personality” in Race, Racism and the Law, Osei-Tutu calls out various companies for designs or slogans that she views as impermissible cultural appropriation:
“Fashion houses and brands, such as Timbuk2 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 sources that she cites include such claimed violations as Comme des Garçons featuring white models with cornrow wigs as appropriating black culture.
She also cites how protests led to various companies withdrawing products accused of cultural appropriation, including Jeep, which “after discussions with the Cherokee Nation … finally agreed in 2023 to stop using the name “Cherokee” on its iconic vehicle.” That may come as something of a surprise to Jeep, which, after redesigning the line due to poor sales, is marketing the 2026 Cherokees.
Denouncing intellectual property laws as “underinclusive,” Professor Osei-Tutu insists that it is unfair for companies but not cultures to be able to use copyright laws.
There are obvious reasons for this distinction, including the protection of creative and free expression. As is often the case on the left, the regulation of speech is often justified in the name of inclusion or diversity.
Osei-Tutu’s proposal would codify the ambiguous, subjective standards that are now commonly raised in universities and colleges. It would prevent artists and speakers from using common imagery or expressions in product expression and design.
The replication of cultural images or references reflects their influence on our society. They are part of our collective identity. Groups that were once isolated and even suppressed have become valued reference points. As an Italian American and an Irish American, I regularly see the language, foods, and traditions of my culture in society. Even when some make me cringe, I am proud of that influence. These are contributions to a “melting pot” of different cultures (a term itself listed as a microaggression).
For those embedded with identity politics and scholarship, there is no greater threat than notions of cultural assimilation and cross-cultural norms.
Professor Osei-Tutu believes that copyright laws could create a system of enforcement of “cultural personality rights.” With the imprimatur of federal law, cultural appropriation would become more of a recognized and enforceable principle.
She emphasizes that each group can base such claims on its own self-definition:
“The group can be self-defining and it is not necessary for the public to have significant knowledge of the group. It suffices that the public is aware that an indigenous group called the ‘Cherokee’ exists. An awareness and understanding of the accurate representation of the cultural identity is not necessary. The fact that the appropriating entity is sufficiently aware of the cultural identity to adopt and use it for commercial purposes indicates not only recognition of the cultural personality but also of its potential commercial value.”
It is hardly surprising that this theory would gain acclaim and traction in higher education, where faculties run from the left to the far left. Appointments and publications today tend to be the result of a race to the left. Anti-free-speech publications continue to outnumber pro-free-speech publications substantially. Articles that trash the Constitution or call for radical changes to our constitutional or legal systems find eager audiences on faculties and law reviews.
The proposal in this article would blow apart the copyright laws and use them to weaponize claims of cultural appropriation. It would codify the culture of viewpoint intolerance and speech regulation that currently characterizes higher education.
Professor Osei-Tutu brushes aside the pesky problems in introducing such a subjective or self-defining standard into federal law. She writes that the actual details can come later:
“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.”
She also brushes aside the dangers to free speech, which she recognizes but insists “[q]uestions regarding freedom of expression, which go beyond the scope of the current Article.”
Of course, citizens would support such a proposal. However, the hope is that such a change could be added to a list of radical measures to pursue if Democrats retake power. Professor Osei-Tutu also notably calls for international recognition of this right, a pitch that is likely to receive greater support from various international bodies.
If successful, it would also allow any group to effectively control images and references related to their culture: “This ability to control the use of one’s cultural heritage and collective identity by excluding those outside the community is one of the salient aspects of the debates regarding the misappropriation of intangible cultural heritage.”
It is an approach that would Balkinize commercial speech and unleash endless lawsuits against creators and companies.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
We should be discussing enforcement of copyright law on the AI companies.
FIRE for Cause…DEI Dumb
end federal aid to colleges
destroy democrats
Unleashing endless lawsuits may be the point behind this lunacy. The plaintiffs bar would leap for joy at the prospect of a new pool of clients eager to cash in on their hyper-sensitivity.
“Balkanize,” bro, not “Balkanize.” Re “It is an approach that would Balkinize commercial speech and unleash endless lawsuits against creators and companies,” wouldn’t endless lawsuits be good for lawyers?
own goal…double check your ridicolous comment!
You dissemble that remark.
Maybe she can speak with Beyonce, who regularly wears a blonde wig. Or Christopher Nolan and Lupita Nyong’o for “stealing” the white, Greek image of Helen of Troy and replacing it with a black woman for a new movie.
I agree with Ivan Pavlov. There is obviously too much free time for this individual and her theories and copyright infringements are divorced from reality. These individuals have strayed out into cookoo land or some alternate dimension.
This adds further to the saying that “something this crazy must have come from a college faculty” be it law or anything else within the university environs.
I begin to see why Mao Zedong insisted on taking the intellectuals (heavy dose of sarcasm here) out into the fields to provide real labor for all.
It appears that as people get further and further from the basics of life and work and real struggle they loose touch with what is real and think that the universe is encompassed in the space between their ears. They fail to realize that space is mostly empty. (In the greater scheme of things)
Mao was not the first. 5000 years earlier, the Confucian Scholars were buried alive in trenches.
“It appears that as people get further and further from the basics of life and work and real struggle they loose touch with what is real and think that the universe is encompassed in the space between their ears.”
The problem is not that such people choose to pursue completely unproductive activities; that is completely within their individual rights. The issue is where the financial support comes from that allows them to do so. Get ALL of our tax money out of the loop, and then we can entertain ourselves by watching many of these idiots starve.
Part of it may be the “publish or perish” incentive structure of academia.
I once read somewhere that many academic papers – if I remember correctly, it was a majority – are never read by anyone except the peer reviewers and others involved in getting the paper published. In other words, they serve no societal purpose. But they allow the author to burnish his credentials by getting published in a “scholarly” journal. Just found a link before publishing my comment:
https://www.vox.com/2015/11/30/9820192/universities-uncited-research
As a side note, for a brief second I wondered if this paper may be another “Sokal hoax”. For those unfamiliar, Sokal was a rigorous physics professor upset with all the trash getting publish in academia. So he submitted a nonsensical paper filled with far left buzzwords and jargon to a journal to see if they’d publish it. They did. I quickly came to my senses and realized that with a name like Janewa Osei-Tutu, she probably sincerely believes in her idea.
https://en.wikipedia.org/wiki/Sokal_affair
Reminds me of an old saying about higher education which says. . . .”those who can “Do” and those who can’t “Teach”. Of course, that’s not the case, but a significant number of those in higher education seem to believe their PhD gives them some kind relationship to nobility classes in Europe and relish the opportunity to show their “colors” at graduation ceremonies.
A great many academics with PhD added to their names aren’t skilled enough to be Post hole Diggers.
I heard Ilhan Omar is going to sue the Tampa Bay Buccaneers.
“I heard Ilhan Omar is going to sue the Tampa Bay Buccaneers.”
With any justice, if that occurred, she would be doing so from a prion cell.
“prison cell” Prions live in mammal craniums
Just when I think I’ve heard the stupidest thing from the left, another thing like this comes. Where is the big old Monty Python cartoon foot when we need it to squash all these idiots?
I wonder if the Catholic Church will ask communities around the world to stop using the names of Saints for cities? Will states charge a “CA Fee” when I have to renew my registration on my old Jeep Cherokee? Can I collect compensation from every product or store that features Nail :POLISH” ? Way too much time on her hands (with or without Nail Polish) indeed.
With this suggestion, Professor Osei-Tutu is guilty of a serious micro-aggression. The penalty should be disbarment.
Her background: Osei-Tutu’s legal experience includes commercial law practice with leading law firms in Canada and Ghana, and a clerkship in Tanzania as an Associate Legal Officer for Trial Chamber II at the United Nations International Criminal Tribunal for Rwanda. Osei-Tutu is licensed to practice law in Ontario, Canada (inactive from Nov. 2023) and New York, United States.
Any questions class?
My older brother always made me take indian whenever we played cowboys and indians and this is my revenge?
My culture is hard work and respect for the views of others. I would be happy to give Professor Osei-Tutu a license to adopt those but I doubt that she would be interested.
Because you’re white.
I definitely smell copyright infringement here… 😉
https://youtu.be/nVZnsafb1Rw?si=2XMc1hGXVGh5iuG9
“cultural appropriation claims as copyright violations.”
Imagine the money she could make off that? BTW, she’s black and I’d bet J. Janewa Osei-Tutu real name is Wanda Smith.
The worst think that can happen to a culture (or author) is to be completely forgotten (no longer remembered to even be used as a bad example)
requiring license of everything in a culture just ensures that it won’t be used by anyone else and will be forgotten
and also, does this go in all directions? will these small cultures have to pay to use western culture things? how do you draw the line?
Copyright isn’t forever (not even for Disney), so what do you do when the copyright on your culture expires?
Another grifter markets her nonsense.
‘The Law and Ethics of Cultural Appropriation: Why Using Cultural Identities for Commercial Gain Seems iike a Wrong Without a Remedy’
‘Denying Cultural Intellectual Property: An International Perspective on Anjali Vats’s “The Color of Creatorship” ‘
‘Protecting Culturally Identifiable Fashion: What Role for GIs?’
Law schools lose their intellectual standing when their faculty publish such rubbish.
The crazy shit liberals conjure-up and market to get intellectual recognition in the education industry. I wonder if she has copyrighted her name?
Finally, the issue is settled.
Life in the west is too easy. This idiot has too much free time in her hands.