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.”
Mz. Tutu needs to watch the new schoolhouse rock video 😉.
That stuff she’s worried about has been bought and sold for 100s of years, in the market place. It’s public domain.
Don’t be wearing no Levi’s, cowboy hats and boots or those snap cowboy shirts!
I’m still thinking about Callais and pack and crack. Africans don’t want to be packed. Then they don’t want to be cracked. I guess just a 51% is just right? Just a majority creating “others” as a minority.
The colorless folk might suggest they want to be packed. Please pack me. Hahaha…
Maybe at the same time, all those cultural Marxists could pay royalties directly to the estate of the long-gone Karl Marx for continuing to talk up his ideas.
The proposal is likely unconstitutional and legally unworkable because it imposes vague, subjective restrictions on protected speech and expression.
There is another culture that the Canadian educated professor Janewa Osei-Tutu ignores: the American culture.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness
Bishop Robert Barron celebrates the 250th anniversary of the United States Declaration of Independence, the culture of the United States by the US Founding Fathers and our great inheritance therein.
Though our founding fathers were indeed influenced by classical philosophy, they were also heirs to another great tradition, namely the Bible. What the founders knew from their Christian formation is that all people despite their enormous inequalities are equally children of God and therefore equal in dignity. Take God out of the equation and equality quickly disappears. But when equality is grounded in a creator, it becomes enduring and universal.
Does this apply to claims of cultural appropriate of Greek mythology by Christopher Nolan and the Odyssey movie for, among other things, casting a black woman as Helen of Troy? Or is it just one way and would only apply to casting a white man as Shaka zulu?
Professor J. Janewa Osei-Tutu doesn’t seem to know that Americans are, because of our rich ancestry, culturally predisposed to adopting good things from other cultures. Consider our language which cheerfully borrows words willy nilly from languages across the globe. We borrow these words because we understand them to best express an idea or concept rather than go through the bother of inventing some other “native” word. Consider American music which has roots in European, African, Asian music traditions but are fused in unique ways here in America. Consider the various fusion restaurants the gleefully mix and match elements of different culinary traditions for new tastes to the delight of their patrons. This is how progress occurs – someone pairs together ideas from different origins to create something new. Famously, Steve Jobs recognized the value of key technical features of a Xerox graphics computer (mouse, GUI) and included them in his MacIntosh computer which seem normal to us today. Rarely do people create something from nothing but rather build on and combine with previous ideas. America is richer for our penchant of “borrowing” ideas. (Note I will acknowledge that Americans could do without some “borrowings” such as pineapple on pizza).
Professor J. Janewa Osei-Tutu’s idea would be counter to how human actually progress and her “laws” would be unenforceable because of a complete lack of objectivity.
Arnold – good points all around. This airhead idea of the low-IQ professor would be anti-progress.
By way of analogy, technology progresses by combining existing ideas in novel ways. Under the Patent Act an invention is patentable if it is novel, useful, and non-obvious. But the “novel” qualifier doesn’t mean every part of the new device must be novel. It is enough to combine existing technologies in new, non-obvious ways. That is what virtually all patentable inventions consist of.
Trump’s Grievance Fund NOT Approved By Federal Court
Acting attorney general Todd Blanche said Tuesday he intends to make public details of payments issued through the Trump administration’s unusual $1.8 billion “anti-weaponization” fund. The pledge came as Blanche testified before the Senate Appropriations Committee.
Under the terms of the agreement — which was not approved by a federal court — awards would be decided by a five-member commission, largely appointed by the attorney general. There is no requirement in the deal that the commission publicly report how the money is disbursed.
“There will be full transparency,” Blanche told senators on Tuesday. He added: “There’s privacy laws that exist, so I don’t want to sit here today and say every scintilla of data will be released. … But I very much anticipate that the claims that are awarded — the basis and the amount — will for sure be made public along the way.”
https://www.washingtonpost.com/national-security/2026/05/19/blanche-faces-capitol-hill-grilling-18b-anti-weaponization-fund/
…………………………………..
Key Passage From Article:
“Under the terms of the agreement — which was not approved by a federal court — awards would be decided by a five-member commission, largely appointed by the attorney general.”
* * * *
This key passage tells us there is NO independent oversight of this so-called settlement. The AG and commission members are all Trump appointees. Donald Trump and Donald Trump only will control this fund.
And this relates to copyrights for so-called cultural appropriate, how again?
Pfffft – mentally ill troll.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
One notably thing about the Copyright and Patent Clause (above) is that, unlike much of the Bill of Rights, the protections authorized are not based on natural rights or natural law. They are explicitly based on providing incentives to authors and inventors, so as to advance science (writings) and engineering (useful arts).
The very weird concept of a copyright for cultural symbols does not serve those purposes at all. The professor proposing this should know that if she actually graduated law school. But I guess they don’t make law schools like they used to.
Not only that, but patents and copyrights are only secured for limited times, after which they are to enter the public domain. You can’t copyright something indefinitely under the constitution.
Oldman– “But I guess they don’t make law schools like they used to.”
They don’t make them like they used to. Ilya Shapiro has been warning us about the dangers their future lawyers and judges pose to our society, particularly with Critical Legal Theory.
” Lawless: The Miseducation of America’s Elites…an insider’s account… ”
I am beginning to wonder if they ever made law schools “like they used to. The Founders never went to law school nor did Lincoln. Some of the best had classical education and were familiar with ancient Greece and Rome and/or were autodidacts or “read law” with a practicing lawyer. Lincoln’s moving Second Inaugural clearly drew inspiration in thought and language from The King James translation of the Bible.
And every lawyer had access to a copy of Blackstone. In fact I have a copy and was first amazed at the simplicity and lucidity of his writing. For example on law and equity he said that law without equity may be too harsh but that too much equity destroys law. Blackstone came to mind when a property owner was dealing with a nonsensical claim by a Haitian immigrant who backed out of a contract for sale and returned to lay a claim that had no legal support. The owner was going to pay the Haitian off and I asked “Why? He has no legal claim or right.” The property owner said, “I know, but there is so much EQUITY in our [superior] courts.” It was as much to say that the superior court in that jurisdiction didn’t follow actual law but just made it up as they go along based on the current fad of what is fair. Then I remembered the wisdom of Blackstone.
I would advance the premise that many native American Blacks, seeing advancement and status in education that change their names to something that sounds African, are themselves engaging in cultural appropriation. It is a culture in which they were not born nor live by. No different than Senator Pocahontas seeking points for an imagined heritage.
Academia regularly reminds me of the George Orwell line: “One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool.”
The same could be said of the MAGA morons in the Trump cult.
“One has to belong to the MAGA cult to believe things that Trump says: no ordinary man could be such a fool.”
“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”
Do these “cultural groups” have an office and an apparatus set up to make these rulings? Just curious.
I kind of like the idea. Cis and heterosexual persons could sue for appropriation by transgenders who misappropriate gender-appropriate and recognized clothing, makeup, and mannerisms. Michael Jackson’s estate could be sued for his misappropriation of Caucasian noses and skin. And God could sue the LGBTQ+ community for making any use of Rainbows (in clothing, banners, posters, caKe decorations, or artistic renditions) inappropriate and illegal unless you are supporting the LGBTQ+ or wish to be seen as such.
Our founders saw Copyright as a protection of very limited duration, and its protection existing SOLELY for its benefit to the advancement of science and the useful arts.
Read the intellectual property clause in the constitution.
“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Modern copyright protections clearly violate the constitution.
Our founders saw “limited times” as 14yrs with a POSSIBLE 14yr extension.
Not life of the author, or a century for corporations.
Clearly culture does not fit under copyright – but even if it did – nearly all copyright on culture would have long ago expired even with todays lifetime copyrights.
While this is a bad idea. It is also a meaningless idea if the actual principles in the constitution are followed – even partly.
Copyrights MUST expire – the sooner the better.
JS – I agree that the terms as they exist are way too long. The 14 year term originated with the Statute of Monopolies (1623), and the 14-year extension with the Statute of Anne (1710). It seems to me those numbers could be a little longer now that people live far longer, but not nearly as long as today. The 1909 Copyright Act’s 28-year term with another 28 renewable should be the absolute limit, IMHO. Maybe even 21 years with an optional 21-year extension, to split the difference.
In Elder v. Ashcroft (2003) two of nine Justices voted to invalidate the Sony Bono Copyright Term Extension Act. Justice Stevens argued retroactively extending terms makes “limited terms” perpetual in violation of the Copyright Clause, and does not provide any additional incentive to create new works. Breyer’s dissent emphasized public harm from such extensions, which is contrary to the purpose of the Clause, and noted as well that remote future payments are effectively of zero value at the time the work of authorship is created, meaning the extensions don’t appreciably enhance incentives to create new works.
“It seems to me those numbers could be a little longer now that people live far longer, but not nearly as long as today. ”
Does the increase in average lifetime provide an appropriate yardstick? I think it could be argued that the bottom line purpose was to allow time to capitalize on a unique or novel idea sufficiently to provide a suitable incentive for the original effort, which does not necessarily require becoming filthy rich (although I have no problem if the originator achieves that). It could be further argued that in our modern world with speed of light communications and just in time manufacturing, that can (and probably should) be achieved in *less* than the original 14 years.
Those are reasonable points. Perhaps greater longevity is not all that relevant. But even if we went back to the 1909 act, that would be a vast improvement over today.