Spike this Heel!
posted by Susan Scafidi
Many thanks for the invitation to join you all in blogging at Concurring Opinions! During my visit I’m looking forward to writing about things that are not necessarily part of my law-and-fashion beat over at Counterfeit Chic, but to start off I can’t resist sharing an image from Paris Fashion Week that touches upon – or, rather, walks all over – both fashion and cultural property.
Take a close look at this sandal from John Galliano’s runway show for Christian Dior. The carved statuette that forms the heel is reportedly a Masai fertility symbol.
Even setting aside the awkward juxtaposition of a curvy, pregnant woman with teenage fashion models so thin that they may not even be capable of conceiving (a legal issue for another day), the colonialist image is a disturbing one. Galliano, like many other Western designers, is known to “ransack the world’s closets for inspiration,” as I put it in my first book. Many of the resulting cultural hybrids (to use Naomi Mezey’s term) are extraordinarily beautiful expressions of human creativity that few would wish out of existence, even if greater norms of attribution to source communities should be developed and encouraged. Some uses of others’ cultural products, however, are simply inappropriate. Placing an African religious symbol literally under the heels of predominantly white women on a European runway is one such offensive use. Selling those same shoes to wealthy women around the globe is another.
I’m reminded of an Australian case that I’ve written about and taught, along with Christine Haight Farley and a number of other scholars. Milpurrurru v. Indofurn Pty. Ltd., (1994) F.C.R. 240, involved a rug merchant who appropriated a series of sacred Aboriginal images for his carpets. It happened that in this case the theft was so literal that copyright law provided a remedy. But what about damages for the desecration of the sacred images that had been trodden underfoot? Or the fact that, lengthy as copyright terms are, religious beliefs are likely to outlast them? Or the potential appropriation of religious images that are not the work of a specific living artist but are instead iconic forms, repeated and passed down over time?
To be fair, maybe the admittedly brilliant Galliano or the august fashion house for which he designs consulted authorized Masai representatives and female elders, who freely and without the pressure of economic or other coercion licensed the use of the fertility figure. It could even be their gift to the reproductively challenged pale populations to their north. But I doubt it.
Perhaps the most peaceful resolution of an issue like this one is a demand for mutual inquiry and respect, rather than protective legislation. Moreover, bearing in mind the violent response to Danish editorial cartoons of Mohammed several years ago and the resulting tension between religious demands and freedom of speech, any such legislation would require extraordinarily careful drafting. But if the cultural “owners” of this fertility symbol object to its commercialization, there should be some forum for their concern.
October 1, 2008 at 2:25 pm
Posted in: Culture, Intellectual Property, Race, Religion
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Responses (7)
skeptical - October 1, 2008 at 4:39 pm
But if the cultural “owners” of this fertility symbol object to its commercialization, there should be some forum for their concern.
Do you mean a forum for expressing concern (like a newspaper or a blog), or do you mean some way for these so-called owners of symbols to coerce the rest of the world into respecting their claims?
Maryland Conservatarian - October 1, 2008 at 6:27 pm
“But what about damages for the desecration of the sacred images that had been trodden underfoot?”
…if you have any ideas on how to get damages for such desecrations, please pass them on. I can see Christians everywhere participating in a class action against our government for financing the “Piss Christ”
Susan Scafidi - October 1, 2008 at 7:29 pm
A friend who used to work for the U.N. once introduced me to the most useful concept of “constructive vagueness,” as in, “In order to reach agreement that there is an issue to be addressed, your memo should employ more constructive vagueness in dictating a solution.”
This, anonymously “Skeptical,” was the reasoning behind the deliberate choice of the word “forum.” Unless you and I agree that careless commercial desecration and commercial exploitation of a religious symbol of a relatively less powerful cultural group is problematic, then we can’t possibly agree on a solution. Since you’ve asked, however, I would entertain a range of possible fora ranging from courts that could apply VERY carefully drafted legislation (see post — a difficult option) to bodies that would facilitate mediation to media outlets capable of exerting social pressure. When Gaultier sent female models styled as Hasidic Jewish men and wearing concentration camp-like striped outfits down his runway, social disapprobation and editorial criticism (both effective within his millieu) followed. When Lagerfeld sent Claudia Schiffer down the runway wearing a bustier embroidered with bits of Arabic that turned out to be from the Koran, both designer and model reportedly received death threats — not an ideal way to resolve an issue.
Notice, however, that I said “careless commercial desecration.” I’m glad that MD Conservatarian brought up Serrano’s “Piss Christ,” which came to my mind as well when I wrote the post. Setting aside the huge question of public funding for private artistic points of view, there’s a difference between deliberately offensive actions intended to express a message and thoughtless but harmful actions intended to make a profit. In the case of the former, no amount of mediation would be likely to achieve a resolution, and media attention would only make the situation worse from the perspective of the parties whose cultural symbols had been appropriated. Too tough a line to draw? Well, we seem to manage with political speech and commercial speech, however clumsily.
In another way, however, “Piss Christ” is inapposite. Serrano was raised Catholic and is making a statement about his own cultural heritage (and mine, actually). This is not a case of cultural appropriation with colonialist overtones; it’s a case of filial rebellion. I certainly won’t be bidding on a print at auction, but with (allegedly) Voltaire, I will defend his right to say whatever it is he has to say — using his own cultural products.
Miriam Cherry - October 2, 2008 at 8:31 pm
awesome post & pic! I am looking forward to reading your posts this month. Miriam
Maryland Conservatarian - October 6, 2008 at 3:50 pm
I guess part of my problem with this whole discussion is that I don’t accept that anyone/group/ethnicity etc. “owns” cultural products. (and if they do, when did the Greeks and Romans “lose” the mythological characters?) Once it is out there, it belongs to all…and generally speaking nobody has any responsibility to seek out so-called owners for approval.
admittedley though, my approach won’t lead to lawsuits or grievance committees, so …
Arilou - December 5, 2008 at 7:44 pm
The problem with religious symbols in general is that, in most cases *it is really hard to determine ownership*. Who, after all, is competent to “own” a symbol that might have been created hundreds, or even thousands, of years ago? In cases where the organization that created it is still alive and kicking, so to speak, I think you can make a reasonable claim in some cases, but for others?
In short, who, among the massai, has the authority to say whether or not this use of their symbol is OK or not? Does any single member of a group have the right to veto any usage of any symbol that can be attributed to said group? Does there have to be some kind of institutional basis that can somehow claim ownership? Should we take a poll and see what the majority thinks?
These are actually some interesting questions. How do you find the “owner” of a cultural symbol? Could say, the swedish government sue Marvel Comics for their presentation of the superhero Thor? (err… this was linked from http://www.girl-wonder.org which is why I was in a comics frame of mind at the time, aside from being swedish that is) Why not? Could romanians sue all SORTS of people over their portrayal of Vlad Tepes? (in fact, I think they’ve tried…)
What if we have a case (hypotethically) of say, George asking Bob if he can use Bob’s native cultural symbols for his art-thingie, Bob says “Sure, go ahead.” But Janet is really offended (Janet belonging to the same culture as Bob) who gets to decide? Bob or Janet?
I think this is a really interesting (and really hard) question.
martin - December 31, 2008 at 7:19 pm
RE this:
But what about damages for the desecration of the sacred images that had been trodden underfoot? Or the fact that, lengthy as copyright terms are, religious beliefs are likely to outlast them? Or the potential appropriation of religious images that are not the work of a specific living artist but are instead iconic forms, repeated and passed down over time?
I acted in both Milpurrurru and the earlier and later Bulun Bulun cases. have a look at the decision in Bulun Bulun v R&T Textiles. It deal specifically with some of the things you raise.
Martin
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