With thousands of designers for consumers to choose from, designers and retail stores today are on a quest to set themselves apart through unique options. Neiman Marcus is one of those luxury department store chains that caters to the consumer population with expensive tastes who want a variety of options. Its competitors normally include Saks Fifth Avenue and Bergdorf Goodman. Recently, however, Neiman Marcus has found itself head to toes with a native nonprofit organization, Sealaska Heritage Institute (SHI). In April, SHI filed a lawsuit against Neiman Marcus alleging copyright infringement and cultural appropriation.
SHI is a non-profit organization in Alaska founded in 1980 to perpetuate and enhance Tlingit, Haida and Tsimshian cultures of Southeast Alaska. The goal is to promote cultural diversity and cross-cultural understanding through public services and events. The Sealaska Heritage store features apparel, art, books, education materials, and jewelry inspired by Native Alaskan designs. Proceeds support vital programs that preserve and promote Southeast Alaskan native language, art, and culture.
The design at issue in the Neiman Marcus suit was created by Clarissa Rizal in 1996. It features Ravenstail and Chilkat weaving styles, two prominent art forms utilizing hand-twined textiles present in Tlingit, Haida and Tsimshian cultures. “In our opinion, this retail garment looks like a Ravenstail robe, and it features a replica of a design that is protected by copyright,” said SHI President Rosita Worl in an email. “It’s one of the most blatant examples of cultural appropriation and copyright infringement that I’ve ever seen.” Though currently sold out on the Neiman Marcus website, the “Ravenstail Knitted Coat” retails for $2,555.
However, what exactly is copyright infringement and is Neiman Marcus really guilty? Title 17 of the U.S. Code lays out what copyright infringement is, when it occurs, and the remedies available. As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. This includes writings, drawings, photographs, paintings, software codes, or even business plans. For a work to be eligible for copyright protection, it must be an “original work of authorship” that is (1) “fixed in a tangible medium of expression,” (2) original, and (3) possessing a modicum of creativity.
SHI asserts that there is substantial copying of the original design in the sweater. SHI goes on to also accuse the store of violating the Indian Arts and Crafts Act (“IACA”). The IACA is a federal law that prohibits “misrepresentation in the marketing of Indian arts and crafts products within the United States. The law prohibits non-natives from selling “any art or craft product in a manner that falsely suggests it was produced … by an Indian or Indian tribe.” The lawsuit filed back in April requests an injunction against Neiman Marcus banning the sale of the garment and seeks statutory, compensatory, punitive and other damages. Neiman Marcus meanwhile recently filed a motion to dismiss alleging that SHI lacks the requisite jurisdiction to include them in this suit because the allegations rely solely on the plaintiffs’ own conduct. They also argue that if the court does not decide to dismiss the case then it should be transferred to the U.S. District Court for the Southern District of Texas with reference to the U.S. Bankruptcy Court for the Southern District of Texas, the latter of which “has already been tasked with administering pre-petition claims against” Neiman Marcus.
This example of companies copying local designers without their permission is not a new one and over the past few years numerous large-scale companies have been accused of such wrongdoing. The unique circumstance here is that this is the first time a company has been sued in the United States for copyright protection of a traditional pattern or design, said Jacob Adams, a specialist in the area of cultural appropriation of copyrighted designs.
Are companies actively aware of what they are doing and simply don’t mind the litigation costs associated with a possible lawsuit or think they can get away with it? Most local artists and non-profit organizations such as SHI don’t have the means to hire expensive legal teams and be stuck in litigation for years in contrast to their rich counterparts. In another unique turn of events in the age of COVID-19, Neiman Marcus filed for bankruptcy in May, with a deal to hand over its business to its creditors. SHI is now hoping that Neiman Marcus’ financial situation does not affect their ability to seek justice for this insensitive and unlawful taking of cultural property. It wouldn’t come as a surprise if the case ends up settling outside of court, but it will be interesting to see what happens next.