Who Owns Culture?

The question of who owns culture is a big one, especially when products associated with certain cultures or nations turn out to be very popular in the marketplace. Take espresso. In a famous scene from The Sopranos, Paulie Walnuts rants inside a Starbucks-like café as he watches the cash register ring with espresso orders: 

Paulie: The fuckin’ Italian people. How did we miss out on this? 

Pussy: What?

Paulie: Fuckin’ espresso, cappuccino. We invented this shit and all these other cocksuckers are getting’ rich off it. 

Pussy: Yeah, isn’t it amazing? 

Paulie: And it’s not just the money. It’s a pride thing. All our food: pizza, calzone, buffalo mozzarell’, olive oil. These fucks had nothing. They ate pootsie before we gave them the gift of our cuisine. But this, this is the worst. This espresso shit.

Pussy: Take it easy.  

(Photo: ljlandre)

Pussy had a point; it was too late. But could Italians have maintained at least some control (and profit) if the nation had trademarked the word “Italian” and sued anyone who tried to sell Italian espresso?   In a nutshell, that is the question at the heart of a recent dispute between the national retailer Urban Outfitters and the Navajo Nation, a federally recognized Indian tribe. Navajo-style clothing and prints are hot on the runways these days. Urban Outfitters had followed (or led) suit, offering up such items as a Navajo flask and Navajo “hipster panty.” The Navajo, who control dozens of trademarks in the word Navajo, responded with a lawsuit in federal court.  

The interesting question for Freakonomics readers is what economic purpose is served by giving a nation or a people control over the use of their name in commerce. At one level, it seems like simple justice: the Navajo should control what is called Navajo, and for many people that principle is especially compelling for a tribe that has suffered greatly in its history. But as the Sopranos episode highlights, it may not be that simple. If Italy — or Italian-Americans like us — could sue Starbucks (not to mention California Pizza Kitchen), would the world be a better place? It would certainly be a very different market if Italy, France, and China could all control how the words “Italian”, “French”, and “Chinese” were used by restaurants and cafes around the US.  

The trademark law the Navajo invoke in their suit rests on the notion that marks serve as information shortcuts. Trademarks designate the source of goods so consumers can make informed choices in the marketplace. But words don’t always tell consumers who made a good, or who sponsored it.  Often, words are used simply to describe a good – to tell us what it’s like, what it does, what it contains — and the ability to do this effectively can be central to a free market’s functioning: it helps put buyers and sellers together. The Navajo-Urban Outfitters dispute, if it goes to court, will turn on what the consumers who bought the Navajo panties thought they were buying.  Did they think the Navajo people had made or endorsed the Navajo panty? Or did they think it was an ironic offering that used “Navajo” simply to describe the design motif or style?  

There is more to the case, of course, including a federal statute governing “Indian arts and crafts.” But the core issue is a very important one in an increasingly global economy. Many people in many places are aware of the styles associated with peoples in other places, and they often want to wear those styles. The current Navajo craze, whatever its origins, reflects that desire.  Firms like Urban Outfitters are generally free to sell Navajo-style clothing and even to use the word Navajo, as long as they use it to describe what the clothes look like, rather than who made them.  As the Supreme Court made clear in the recent case, that is so even if some consumers are confused and mistakenly think that the Navajo people are responsible for Urban Outfitters’ Navajo panties.

The Navajo may have a strong ethical claim to some uses of the word Navajo – and by no means are we endorsing Urban Outfitters’ actions. But this being Freakonomics, ethics are not our focus. As a legal and economic matter, the Navajo are really no different than the Italians. Whatever trademark rights they possess will be trumped by market competition if it can be shown—as Urban Outfitters will surely try to do—that buyers of, say, the Navajo panty understood “Navajo” as designating a style, and not as a statement of origin. 

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  1. NZ says:

    This reminds me of champagne, specifically how you’re not supposed to call it champagne unless it’s actually from Champagne, France.

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    • MartinJ says:

      The EU has a Protected Geographical Status that it gives to foods connected with a specific region. Legally you can’t sell sparkling wine as Champagne in the EU unless it comes from that region, to much grumbling from the British (we like to pretend we invented it).

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      • Anders L says:

        Funnily enough, champagne producers plans to buy vineyards in southern England – will they still call it champagne?

        http://www.independent.co.uk/life-style/food-and-drink/news/top-champagne-house-may-buy-english-vineyards-400713.html

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      • Mike B says:

        It’s because nobles who bought all the wine producing land in Champagne back in 1273 don’t want any pesky competition getting in the way of their birthright. If there is one thing the Europeans love it is barriers to market entry and the whole Protected Geographical Status bs simply a convenient way to restrict competition and enforce trade practices that have long been illegal under the WTO, EU etc. Champagne and all the products like it are nothing more than an industrial process that ever since the printing press was invented has been able to be duplicated or even transplanted through immigration around the world. Sure Chilean Champagne is probably going to suck, but I know how to read a label and I would never support banning its production because every so often it just might not.

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  2. Martin says:

    Hidden due to low comment rating. Click here to see.

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    • Dutch says:

      Take it easy

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    • Hexe Froschbein says:

      Can someone please change the Stalinesque auto-censoring code that hides unpopular opinions and so turns the comment section into a echo chamber?

      It irks me to have to click on the link, my mind needs no protection from dissenting opinions(or stuff I regard as stupid), in fact, they are often far more interesting than agreeing ones.

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      • Neil (SM) says:

        Like many things that don’t always completely work in practice, it’s well-intentioned. Y’know, just like the road to hell. The idea is that it helps the community to self-moderate to weed out spam, nonsense, highly inflammatory, bigoted, etc, content.

        Anything more political or controversial will usually be more of a “highly debated” sort of topic. But I guess realistically you get the more overreaching effects like this one. Martin posted an apparent — at least in this community — fringe minority opinion. But in this case the post was not particularly inflamatory; certainly it represented a valid opinion even if it’s not one most of us agree with.

        So the system failed here somewhat. Although normally I’m not shedding too many tears about missing the “Boohoo, I’m never reading this blog again” comments.

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  3. Whitney says:

    Oh Martin. I promise you and your tender little sensibilities will not be missed. Urban Outfitters are cultural appropriators and are deservedly facing the ire of trans activists. Look into their awful “Jack and Jill” card.

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  4. James says:

    So why should a group, especially national/ethnic ones in which membership is not a choice, be entitled to the benefits of the inventions of its members? You might have a case that the inventors of espresso has a right to benefit from the invention (and they did, through patents), but the rest of the Italians?

    Then we also have to remember that a lot of those “Italian” foods were in their turn borrowed from other cultures. Something similar to pizza has apparently been around, in one form or another, since neolithic times. Olive oil is mentioned in Homer, and was cultivated in Greece as long ago as 1500 BC.

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    • Eric M. Jones. says:

      …And spaghetti came from China.

      Oddly enough, fortune cookies are Japanese, not Chinese. The transition seems to have taken place (?) in WWII California. One wonders how sushi remains so thoroughly Japanese. Yes, some other ethnicities have it, but it really ain’t sushi.

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      • Juan says:

        Spaghetti did not come from China. Several centuries before Marco Polo pasta had entered Europe from the Arab world, probably via Sicily.
        Sushi refers to rice with vinegar. What we call sushi is merely one of the preparations of this where the rice is wrapped in seaweed with some other filling.

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    • Mike B says:

      What’s funny is that in many of these proposed (or sometimes actual) cases immigrants are denied the fruits of their heritage simply because they have crossed national boundaries. There are more Irish living today in the United States than Ireland, but if something like a Protected Geographical Status for culture came about it would surely treat them the same as if they were Chinese. Same goes for countries that can restrict the export of “cultural artifacts”. Again, why can’t the 10′s of millions of Italians living in the United States be free to take some of their Roman art and treasure with them?

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      • James says:

        “There are more Irish living today in the United States than Ireland…”

        Which is utter nonsense. There may be more Americans with at least one Irish ancestor than there are Irish in Ireland, but culture is not determined by genetics. These people are not Irish, they are Americans.

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    • RPM says:

      And tomatoes came from the Americas!

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  5. Tom says:

    Hidden due to low comment rating. Click here to see.

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  6. BSK says:

    Italy actually does have their own protections. Certain things are designated DOC (not sure what the acronym translates as) and authenticates their, well, authenticity. To carry a DOC label, you must meet certain standards and be certified. I don’t know what legal standing such a label holds in America, as the certification is issued from Italy, but this is far from unprecedented.

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    • Enter your name... says:

      “Denominazione di origine controllata”. It has no legal meaning in the USA, except that if you claim to have DOC status when you don’t, you could be sued for fraud.

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  7. Julian says:

    I think the economical system rewards the better use of the resources rather than the original invention or the original discovery. For example the chocolate was a harvest from Mexico and central America, but now it’s common knowledge that the better chocolate are made in Swiss, there’s no cacao plantation in Europe all the swiss made chocolate are growth in Africa or Asia, mostly because is cheaper. But, the swiss made possible the industrialization of the plant creating the machines that extract an condense chocolate.

    The same happen with coffe, there’s no Italian coffe or french coffe, the coffe plant doesn’t growth in cold places, is always in tropical or semi tropical with sun and humidity, but the Frenchs invented a way to toasted different than the Italian, and the Itlalians decided to extract the coffe with a steam machine (when the steam machines were in fashion) so the expresso was invented. But they din’t invent the use of coffe neither the process, they only invented a better way to drink it.

    An other example is the English tea, we see this as the epitome of what we call culture and refinement in western culture, but actually is a cultural appropriation by the English in his colonial period, that was common in all the courts in Asia way before the England was even a place called England.

    Is a complicated issue

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  8. Alejandro says:

    Hidden due to low comment rating. Click here to see.

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    • Renee A.D says:

      Hidden due to low comment rating. Click here to see.

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    • MikeR says:

      The entire goal of our legal system is to be privilege-neutral. To treat the rich and the orphans alike. Bringing in the question of the Navajo’s oppression is irrelevant – we don’t entertain such considerations in drafting trademark laws.

      And it’s a good thing too – if we did, inevitably it would be the politically-connected who would benefit. Certainly not the Navajo.

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      • Alejandro says:

        “The entire goal of our legal system is to be privilege-neutral.”

        I largely agree. What I was pointing out (the argument that you call irrelevant) was how this intention often falls by the wayside in practice. The navajo are only one such example. The more recent tragedy involving Trayvon Martin is another. Unfortunately, the politically-connected DO often benefit.

        My point is quite irrelevant if we are considering “purely” legal and economic matters. But my objection is too this bracketing of practice and historical circumstance, not to the structure of the authors’ argument.

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      • BSK says:

        The problem is, our system is NOT privilege-neutral. If it was, the legal system would not have allowed the US Government to violate legal treaty after legal treaty it signed with various Indian tribes.

        It is a little self-serving to NOW say, “Well, let’s be neutral” after centuries of a system that entrenched white privilege (and continues to do so in many ways).

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    • Enter your name... says:

      The USA has a long and strong history of discriminating against the Italians, too. It’s just that our history textbooks “forget” to talk about anti-Italianism. Did you know, for example, that many Italians were lynched in the South? That many Italian citizens were interned and stripped of their property during WWII? That non-Italians had a specific ethnic slur that they used to describe Italians, on par with what we now call the “N-word”?

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      • James says:

        If you know anything of the times & culture pre-1960 or so, you’ll know that every ethnic group had at least one specific ethnic “slur”.

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    • Neil (SM) says:

      This is not marginalizing anything; you’re missing the point.

      The whole point of this blog is to think of nearly everything from a purely economic focus. Of course other considerations should be taken into account when thinking of the issue as a whole and when people in power are making decisions they most certainly had better think of the whole picture. And nobody is suggesting otherwise.

      However, to repeat, this blog is focusing solely on economics — the other issues need to be disregarded in terms of theoretical economics because they simply cloud the waters.

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