Addressing cultural misappropriation through law

From tā moko filters on Snapchat to a Pākehā television presenter posting a picture of a monkey wearing a korowai on Instagram, culture, particularly Indigenous culture, is regularly used inappropriately, and New Zealand law is failing to protect it.

A journal article by University of Auckland legal scholar Jayden Houghton (Rereahu Maniapoto) proposes a new law to enable those affected by cultural misappropriation to seek amends.

The article highlights the need for a tort of misappropriation of culture. It proposes four elements of the tort that the plaintiff would need to prove — that the defendant appropriated an element of the plaintiff’s appropriable culture, the defendant’s appropriation was without the consent of the cultural community, the defendant appropriated the plaintiff’s culture for their own advantage, and the appropriation was a misappropriation, a concept which the author defines and explores. It also proposes the available defences and remedies. 

Implementing this common law tort (a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability) into New Zealand law, says Houghton, would enable legal recourse, prevent further harm from being caused by misappropriation, uphold the value and importance of culture, and help to validate the damage caused by misappropriation.

The tort would have four available remedies — a declaration that the defendant misappropriated the culture, an injunction to require the defendant to stop or remove the misappropriation, compensation for loss caused by the misappropriation, and an account of profits to redirect unauthorised gains from the misappropriation to members of the affected culture.

“Currently, most instances of cultural misappropriation can only be dealt with by societal pressure. This burdens those affected with having to contact the people who appropriated their culture, without any guarantees the appropriators will stop,” says the senior lecturer in the Faculty of Law.

“People who are affected can use the media to call out cultural misappropriation, which may uphold the value and importance of the culture, but it may not validate the harm caused by the misappropriation. Indigenous peoples, who are perhaps the most affected by cultural misappropriation, do not want to have to sustain this practice.”

The scholar applies the proposed tort in two case studies to illustrate how it might work.

The first demonstrates the tort in a Māori context, detailing a 2022 incident when Snapchat and Instagram filters superimposing moko kauae (a tattoo received by women on their lips and chin) and mataora (a face tattoo received by men) on users’ faces gained significant media attention.

Any individual could create a filter and social media users could use the filter and share the superimposed image.

In this case, Houghton says a claim of misappropriation of culture could have been brought against the people who created the filters.

“Arguably, a claim could also be brought against Snapchat and Instagram because, while the platforms did not make the filters, they hosted them and, therefore, were part of the chain of misappropriation.”

The other case study in which the tort might be invoked was one in which Gypsy Craft Fairs Ltd, an Auckland company, started holding ‘The Original Gypsy Fair’, which described itself as a venue for ‘like-minded travelling folk’.

The event’s misuse of the name ‘Gypsy’ in its title and the use of imagery of Romani people on the poster prompted campaigners to call out the event for exploitation.

Again, says Houghton, the proposed tort could have provided a legal remedy — "in this case, perhaps an account of profits for the Fair’s financial gain and an injunction preventing further use of the term or images".

Although a tort of misappropriation of culture would be a step forward, the paper also brings attention to the need for further options for amends and other avenues to encourage public education.

“An inevitable issue with any tort is that litigation is expensive and time-consuming,” says Houghton.

“Ideally, the tort would be just one legal protection in a comprehensive protective regime, perhaps including an advisory office to develop educational materials and provide advice to prospective users of elements of culture, a register for relationships with elements of culture, and a dispute resolution and adjudicative mechanism to help resolve disputes relating to claims to and uses of elements of culture.”

In the meantime, Houghton says the tort would fill the legal gap by providing protection and reparation for the cultures and peoples affected by cultural misappropriation in Aotearoa.

The paper, A Tort of Misappropriation of Culture, is forthcoming in the Torts Law Journal.