The Law and Ethics of ‘Cultural Appropriation’

Abstract

Cultural appropriation is often defined as the ‘taking of intellectual property, cultural expressions or artifacts, history, and ways of knowledge.’ Despite this apparent link to intellectual property, legal issues are only rarely mentioned in the current debate. Thus, to start with, this article aims to fill this gap by identifying the possible bases in existing laws that may, at least in principle, justify claims of unlawful behaviour. As far as ethical considerations are concerned, the article then notes a deep divide between those who fully endorse the notion of cultural appropriation and those who are resolutely opposed to it. This article aims to give fair consideration to both sides of the argument, suggesting three categories of potentially unethical conduct. On this basis, the article finally revisits possible legal responses from a normative perspective.

Keywords: law and culture, ethics, intellectual property, tort law, freedom of speech, identity politics

JEL Classification: K00, K13, K20, K38, O34