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.”