Cultural Appropriation and Group Ownership Claims

I. ARGUMENT AGAINST INTIMACY

Nguyen and Strohl argue that expressive appropriation claims derive their normative significance from considerations of intimacy. They argue that when members of a group have shared practices that contribute to a sense of common identity, “participation in such practices can generate relations of group intimacy, which can ground certain prerogatives in much the same way that interpersonal intimacy can.”³ Their argument from intimacy proceeds by analogy to a case of interpersonal intimacy. In their example, a couple have pet names and a funny dance for each other. Nguyen and Strohl raise the question of whether friends of the couple are allowed to witness, use and transmit the couple’s pet names and dance moves. They suggest that the answer “simply depends on where the couple decides the boundary should be.”⁴ Considerations of intimacy provide such boundary-setting claims, on the condition that the couple’s practices are sufficiently distinct from pre-existing ones. Under those circumstances, for a friend to witness, use or transmit the couple’s practices would constitute a breach of intimacy.

Nguyen and Strohl then draw on Julie Iness’s explanation of intimacy and its relation to privacy to propose a way of understanding group intimacy. On Iness’s view, the intimacy of an act depends on the motivational state behind the act being one of loving, liking or caring for.⁵ Drawing on this motivational-state view of intimacy, Nguyen and Strohl propose that group intimacy arises when a group has practices that function to promote a sense of identity and connection among participants to the practice, in a way that makes the practice meaningful and valuable to the participants.⁶ When a group meets the relevant criteria for being an intimate group, members of that group have expressive appropriation claims against their practices being used by outsiders to the group. Infringing those claims constitutes a breach of intimacy analogous to the interpersonal case.

James Young has argued that Nguyen and Strohl shift too quickly between intimacy and privacy, and that their account collapses to intimacy-based accounts of privacy rights.⁷ Young points out that trying to fit cultural appropriation claims under the category of privacy rights does not work, because the cultural objects that are the subject of appropriation claims are in the public domain. The question about appropriation is not whether the group has a right to keep their practices private, but about whether outsiders to the group are permitted to make use of cultural practices or styles which the group has already made visible in public.

Nguyen and Strohl emphasize that in drawing on Inness, they do not intend to suggest that group intimacy gives rise to a privacy right. Instead, they argue that considerations of group intimacy generate claims against the group’s practices being used by outsiders, when such use would constitute a breach of intimacy. These claims hold even when the practices in question are otherwise public. In that way, expressive appropriation claims grounded in intimacy are intended to reach beyond rights to privacy.

There remains a challenge for the intimacy account, however, which is that it is not clear that the protection of intimacy requires the kind of boundary-setting control that Nguyen and Strohl assume that it does. This is because when it comes to practices that are performed in public, intimacy does not typically require inter-group exclusivity. That is, it does not require that a particular practice be shared only between the intimate partners in question, and by nobody outside of their group. If intimacy does require exclusivity, it is typically a kind of intra-group exclusivity. In other words, it is often important to intimacy that each member of a couple agree to use a particular pet name only for each other, and not for anybody else.

The ubiquity of pet names such as “darling,” “babe,” or “bae” illustrates this point. Their intimacy is derived from the fact that these are words that people reserve for use within a specific intimate relationship, be that with a family member, a close friend, or romantic partner. I can intimately call my husband “babe” as long as I’m not using that word for anyone else. It does not undermine the intimacy of our use of the word “babe” for each other that other people also use it in this way for their respective romantic partners. From the perspective of the motivational-state view of intimacy that Nguyen and Strohl use, this can be explained as follows. The fact of other people using the same pet names within their relationships does not affect the motivational states behind the first couple’s use of the term, as long as the first couple keeps their own use exclusive to each other.

Perhaps we ought to read the interpersonal case as meaning that a breach of intimacy occurs if friends of the couple use the couple’s pet names and funny dance to refer to the members of the couple. However, on the motivational-state view of intimacy, that kind of case is best understood not as a breach of the intimacy between the couple, but rather as an attempt at initiating an unrequited level of intimacy between the friends and the members of the couple.

With that in mind, we can assess the analogous case of group intimacy. The question at hand is whether the intimate sharing of cultural styles within a group gives rise to claims against others making use of those styles. Extrapolating from the interpersonal case, it is not clear that the mere use of cultural styles by outsiders would undermine the motivational states of the group members when sharing the style among themselves.

There may be some cases where this could happen. Those would be cases where a group’s identity is constituted by the sharing of a style in a particular way, such that use by outsiders without the same motivational states would make it difficult to discern which people using the style had the intimate motivational states, and which did not. However, that description fits a type of case that Nguyen and Strohl discuss as involving independent harm, where the use by outsiders leads to the annihilation of the group in question.⁸

On the other hand, one might think that uses of the style by outsiders are akin to an unwanted demand for acceptance within the group’s boundary of intimacy, similar to friends using the pet names for the couple in the interpersonal case. On the motivational view of intimacy, intimate acts “draw their meaning and value from the agent’s motivational state of loving, liking or caring for.”⁹ From that perspective, cultural appropriation might be interpreted as a breach of intimacy insofar as it involves outsiders attempting to participate with group members in the meaning-making of the use of cultural styles. However, as in the interpersonal case, it is not clear that such attempts by outsiders would undermine the reciprocal motivational states behind the sharing of the cultural style among group members. The intimacy of the group can be preserved as long as group members are still able to recognise the meaning and value of the cultural style as understood within the group.

In the face of this challenge, further argument would be required to establish appropriation claims of an expressive nature on the basis of intimacy. The intimacy account nevertheless contains many of the building blocks towards a case for expressive appropriation claims. These include the fact that cultural styles are often integral to group identity, and that debates about cultural appropriation are in part about how different uses of cultural styles play a part in shaping understandings of the meaning and value of those styles in society. The intimacy account focusses on the ability of intimate groups to share cultural styles among themselves in particular ways. The ownership approach set out below proposes instead that what is at stake is group members’ ability to use cultural styles in the presentation of their identity to the wider public.

II. TOWARDS OWNERSHIP

The thought that a person or group could have ownership over something as inchoate as a style might seem like a stretch. But several considerations speak in favour of taking seriously the idea that what is at issue in cultural appropriation claims is some claim to ownership over the cultural objects in question. First, the intimacy account assumes that there is an interest in being able to control the use of such cultural objects. The interest we have in being able to control or limit the use of things that others can see or interact with is often given expression though ownership claims. Moreover, the structure of those claims is the same as what Nguyen and Strohl call expressive claims. If I own a bag, I do not need to give any independent explanation as to why you may not touch my bag, other than that I have not given my consent for you to do so.

The example that Nguyen and Strohl invoke to demonstrate how expressive claims function is revealing on this front. They suggest, “There are analogous types of claims elsewhere in the normative world. “Please don’t touch me,” is an expressive claim—the very fact that I don’t want you to touch me and have said so grounds its normative force.”¹⁰ Proponents of self-ownership would argue that the reason we have this kind of claim is because we stand in a relation of ownership to ourselves and our bodies.¹¹ While the concept of self-ownership is contested, part of the depth of disagreement on the topic derives from the fact that the claims we have with respect to our bodies are, at the very least, similar in form to ownership claims. They provide us with exclusive control over the thing in question, such that we get to prevent others from making use of it just because we say so, without having to justify ourselves by reference to independent considerations such as harm. If this is the type of claim we are seeking to establish in the case of style appropriation, this indicates that what we are looking for is something in the vicinity of ownership.

Second, it is surely no coincidence that the term cultural appropriation uses the language of ownership.¹² The everyday thought behind complaints of cultural appropriation is that you do not get to make use of objects that are not yours to use. The point here is not that everyday use of such terms necessarily reflects the underlying normative structure of the claims in question. It is to illustrate that the plausibility of the thought that groups can have this kind of boundary-setting claim over cultural styles is often tapping in to intuitions about ownership. Despite this initial intuitive plausibility, however, there are considerable obstacles to making a robust case for group ownership over cultural styles.

Academic discussion around ownership of cultural objects has tended to centre on tangible objects. The focus has often been on how to identify and weigh the various interests that bear on questions of cultural property. Some argue that specific cultures have special property interests in objects relevant to their own cultural heritage, while others emphasize a more global and overriding interest in wider human culture.¹³ The question of assigning property or ownership rights to a culture is further complicated by the difficulty of defining the culture and its members in a way amenable to identifying who the relevant owners are, given that culture tends to be in flux rather than fixed.¹⁴

These difficulties are only deepened when it comes to applying the concept of ownership to intangible objects such as styles. In particular, the diffuse nature of something like a style of music or a hairstyle, coupled with the general interest in iterative creativity, lends all the more weight to the thought that any particular culture’s interests in being able to exert ownership claims over a cultural style will be outweighed in the ultimate balance of interests.¹⁵

A further consideration against the suggestion that ownership is what is at stake in cases of style appropriation is that what is objected to is often not the mere use of a cultural object by a non-group member, but rather its use in a particular way or by a certain type of person (usually a member of a dominant group). Indeed, much of the work on what makes cultural appropriation wrongful emphasizes the salience of background social inequality between the victims of cultural appropriation and the appropriators.¹⁶ Following this, much of the discussion about whether particular uses of cultural objects count as cultural appropriation hinges on whether the use in question is oppressive or harmful to the culture of origin. This might indicate that cultural appropriation claims function in a different way to ownership claims. It is no defence against using my property without my consent that your use of it caused me no harm. This consideration might speak in favour of adopting an account of cultural appropriation based on independent considerations of harm or oppression, instead of pursuing a category of expressive appropriation claims.¹⁷

The challenges to grounding cultural appropriation claims on some concept of ownership are significant, and it is perhaps no surprise that the academic debate around cultural appropriation has largely eschewed attempts to do so. However, Nguyen and Strohl have made a compelling case for pursuing the possibility of the type of appropriation claim they call “expressive”, even if the intimacy account fails to get those claims off the ground. In light of this, it is worth pursuing the ownership route to see if it can bear fruit.

The approach I argue for below attempts to meet the challenges to grounding ownership-based cultural appropriation claims in the following way. It starts by identifying a control interest that is assumed in the intimacy account, and which can give rise to ownership claims. I then argue that the way in which that control interest is set back under certain conditions of oppression can generate group ownership claims in response to such oppression. The way in which such ownership claims arise as a counterbalance to conditions of oppression goes some way to overcoming the challenges to the ownership approach. The oppressive conditions under which such claims arise serve to demarcate the cultural objects that can be subject to such claims, as well as the groups to which such claims accrue. However, some difficult boundary questions remain, and the way in which they constrain the account are discussed in Section IV.

The appeal to the way in which background oppression provides the conditions for group ownership claims also helps to explain why cultural appropriation claims are normatively significant when some cultural object is appropriated from an oppressed group, but not from a dominant group. The account of group ownership claims as arising in response to oppression allows for this asymmetry, while carving out space for appropriation claims of an expressive nature, alongside independently-grounded claims.

Finally, the difficulty of assessing cases in which there is disagreement over whether or not the use of some object constitutes cultural appropriation is discussed in Section IV. Nguyen and Strohl point out that disagreement among group members over the deployment of expressive appropriation claims complicates the question of how to determine whether or not the use of the object in question is permissible. I argue that disagreement poses a deeper problem for ownership-based appropriation claims, because it undercuts the grounding conditions of such claims. This heavily constrains the conditions under which such appropriation claims are normatively possible.

III. GROUP OWNERSHIP UNDER OPPRESSION

Intimacy-based accounts of the right to privacy emphasize the importance of being able to control what we share with others and who we share it with.¹⁸ I have argued above that the appeal to intimacy fails to ground claims that reach beyond privacy. However, accounts of the normative importance of privacy point to a control interest which can help to build the case towards ownership-based cultural appropriation claims. Andrei Marmor argues that the main interest that grounds the right to privacy is, “the interest in having a reasonable measure of control over ways in which we present ourselves to others, and the ability to present different aspects of ourselves, and what is ours, to different people.”¹⁹

The main challenge to defending expressive cultural appropriation claims was that these involve exerting control over how others make use of cultural styles which are already presented in the public domain. I argue in this section that there are certain conditions under which it becomes important to a person’s ability to exert a reasonable level of control over how they present themselves to others that they be able to assert ownership claims over items that are of particular significance to them. Ownership claims allow us to exert normative control over how others make use of a given object, even when that object is presented in public. For example, I may display an artwork for which I hold the copyright in public, allowing others to view and enjoy it, while withholding permission for anyone to copy the work. As such, ownership claims reach beyond the protections of privacy, which protects our ability to restrict who we present things to in the first place. After establishing the role of ownership claims in protecting our interest in self-presentation, I then extend this argument to support an account of group ownership claims over cultural objects, under conditions of oppression.

Ownership can play an important role in protecting our interest in self-presentation, especially when it comes to objects which are tied up with one’s sense of identity. The thought that we often project our personalities through our possessions is a familiar one to anyone who has ever taken care over what to wear for a job interview, a special occasion, or just a regular day out of the house. The further notion that aspects of one’s personhood can become enmeshed with one’s possessions is one that has a long tradition in theories of property rights. Margaret Radin, for example, argues that some items of property, such as wedding rings, derive their normative significance from the fact that such objects can be constitutive of personhood.²⁰ More recently, David Shoemaker and Bas van der Vossen have argued that the full moral significance of property rights derives from the way in which the self becomes extended into the things we own, combined with conventionally protected rights claims.²¹

The link between some aspect of personhood and a person’s creative output is one that is similarly emphasized in personality-based approaches to intellectual property. A particularly interesting example from this domain is the phenomenon of “droits morals” or “moral rights” of artists as protected under continental European intellectual property law. Article 6bis of the Berne Convention protects a set of inalienable rights of creators, including the right to claim authorship and to object to any distortion, mutilation, or derogatory modification of their work. Such moral rights have tended to be justified on the basis of personality-based approaches to intellectual property. Gillian Davies and Kevin Garnett, for example, argue that “The concept and justification for moral rights is the notion that the personality of the author is bound up in and expressed by his work. Thus, the term moral rights refers collectively to a number of rights which are concerned with protecting the expression of the author’s personality and his personal and continuing relationship to his work.”²²

The claim that part of one’s personhood is literally extended into the objects that we produce or own is controversial. However, the weaker claim that having ownership-type control over some objects can support one’s ability to express one’s personality to others is difficult to deny. If we accept that weaker claim, we can also suggest that ownership claims can provide a way to protect the interest in having a reasonable measure of control over ways in which we present ourselves to others. The case for ownership claims on this basis will hang on some key considerations. First is how closely connected the objects in question are to one’s sense of identity or personhood. Second is what role the object or style in question plays in presenting that identity to the world. Third is what kind of claims over the object or style are required in order to protect a reasonable measure of control over self-presentation for the people in question.

A case for moral rights over artworks can be built along these lines. Rights to attribution can be justified on the basis that they support the ability of artists to present themselves in public as artists, through recognition of authorship of their work. Claims against their artwork being distorted in various ways can be understood as supporting the ability to present oneself as an artist who makes a certain kind of art, through the protection of the integrity of the artist’s work.

The case for ownership claims over cultural styles can be built the same way. The initial building blocks will be in place where some cultural style is closely connected to the sense of identity of a social group, and where that style is used by members of the group to present an aspect of their identity. However, so far, that would only establish that the group members must be able to make use of the cultural style in question in order to protect their interest in self-presentation. The question at hand in debates about cultural appropriation is whether this generates a claim to be able to exclude others from using the style in question. The key point to building the case for that type of claim hangs on whether or not there are any circumstances in which such claims are required in order to provide group members with a reasonable measure of control over their ability to present themselves to others. I argue below that such circumstances are sometimes in place. Before addressing that question, however, further discussion is warranted of the relevant ways in which cultural styles may be connected to identity.

Following the analogy to the moral rights of artists, one might think that the relevant identity connection must come from being the inventor or originator of a certain style. While this is one way in which a relevant identity connection can arise, it is not the only way. The account allows for cases where a group has adopted or adapted a style that has become intertwined with the group’s identity. A key consideration will be whether the style and its association with a particular group’s identity is sufficiently distinct in the social context in which appropriation claims may extend.

One way to understand how cultural styles can be connected to a sense of identity is by drawing on the concept of noncontingent ownership elaborated by Elizabeth Coleman. Noncontingent ownership arises from meaningful connections between a person or group and some object. These connections are part of one’s history, and as such, are features of being the person that one is. Examples can include body parts, ancestors, and even experiences. Coleman argues that such relations of ownership generate certain kinds of moral duties that we ordinarily recognize with respect to the thing.²³ For example, that she ought to check with her sisters before getting rid of a family heirloom that is in her possession, given that it plays a role in each of the sisters’ noncontingent identity.

Cultural styles can be thought of as being part of a social group’s noncontingent identity in the same way. Such relations can arise whether or not the group originated the style in question. On Coleman’s account, when we recognise such noncontingent ownership, we recognise duties to respect it in various ways. This leaves open the question of what kinds of claims and duties are implied by noncontingent ownership in different contexts. Of course, one’s sense of identity can become bound up in many different kinds of object, without this entailing that we have the full extent of claims associated with ownership, with respect to those objects.²⁴ The question with respect to cultural appropriation claims over cultural styles is whether the kind of identity-based ownership connection between a group and a cultural style extends as far as giving that group claims to exclude others from using the style in question.

The clearest path to the justification of that category of ownership claims will be where such claims are required to protect the interest in self-presentation. The argument from self-presentation is offered in support of this particular category of claims with respect to cultural styles. It is not intended to explain or justify all forms of ownership, and is compatible with a pluralist approach to the justificatory basis of ownership claims in different domains.²⁵

Insofar as the interest in self-presentation is formulated in terms of having a reasonable level of control over one’s self-presentation, there is a further question of how to interpret the relevant standard of reasonableness. While it is beyond the scope of this article to provide a full specification of that standard, it will involve balancing various competing interests. Some conflicts will involve a direct clash between the interests in self-presentation of different individuals, while others will involve competition between different types of interest.

Recall the main obstacles to establishing ownership claims over cultural styles, in light of our focus on self-presentation. Unlike in the case of the moral rights of artists, where the claims pertain to the distortion of specific and discrete artistic artefacts, appropriation claims over cultural styles have a much wider scope. Most notably, cultural styles are non-rivalrous in their nature, which means that my ability to use a cultural style for my own purposes is not normally impeded by other people’s use of the same style. This presents a significant obstacle to establishing that a person or group’s interest in self-presentation requires ownership-type control of a style, as opposed to exclusive control of discrete objects that are rivalrous in their use.²⁶

Secondly, even if it were possible to build such a case, it is likely that competing considerations would outweigh the reasons in favour of the group having such exclusive control. This is largely because of the interest that everyone has in being able to engage in creative activity that makes use of or takes inspiration from different cultural styles. If what is at stake is the interest in having a reasonable level of control over how we present ourselves to others, the self-presentation-based case for group ownership rights over any cultural stylistic output is unlikely to meet the bar of reasonableness.

However, how we assess the role of ownership claims in protecting the interest in self-presentation in the overall balance of interests will be influenced by facts about which interests are under threat in different circumstances. A person’s interest in self-presentation can be set back in particular ways under circumstances of injustice. Taking this approach to protecting a reasonable measure of control over one’s ability to present oneself to others reveals that some things might warrant ownership-type protection in unjust circumstances, which otherwise would not warrant such protection.

The case for group ownership over cultural objects draws on this insight. Where forms of injustice pose a threat to the interest in self-presentation of members of a social group, and where that group’s cultural objects are connected with the group members’ sense of identity, ownership claims over those cultural objects provide the redress required to claw back a reasonable measure of control over one’s self-presentation.

In order to build the case for group ownership claims for the category of style appropriation, it is therefore necessary to identify more specific conditions under which such claims can be justified. These conditions arise when a group faces oppression which undercuts the self-presentation interest of group members, and ownership claims provide a way of protecting that interest. On this account, ownership claims over cultural styles arise in response to background conditions of oppression. Cultural appropriation claims thus arise from the perspective of non-ideal theory, not merely by virtue of a social group being the originator of a cultural style.

The way in which the ownership account generates appropriation claims under conditions of oppression is distinct, however, from the explanations of the wrong of cultural appropriation offered by the oppression and harm-based accounts. Those accounts pick out cultural appropriation as wrongful in cases where the use of a cultural object by an outsider contributes to or manifests oppression or harm to some social group. By contrast, the ownership account generates a category of claims when background conditions of oppression are in place. Such claims give group members the normative power to object to any use of their cultural objects by outsiders, making such use wrongful, even in instances where the particular use in question would not in fact contribute to any oppression or harm to the group. Considering some insights from an oppression-based account provides a path to explaining how background conditions of oppression generate such ownership claims.

Oppression-based accounts of cultural appropriation draw attention to the way in which the misuse of cultural objects by outsiders to a group contributes to damaging stereotyping of the group in question. Erich Hatala Matthes explains the harm of cultural appropriation as a form of epistemic injustice.²⁷ On the one hand, cultural appropriation can involve members of a dominant group misrepresenting members of a marginalized group. Such misrepresentation feeds into stereotyping and prejudice, which contribute to various forms of communicative disablement, testimonial quieting, and credibility deficit for members of the marginalized group.²⁸ Matthes draws on Kirstie Dotson’s discussion of how the prevalence of what Patricia Hill Collins calls “controlling images” can result in “testimonial quieting.” Matthes suggests that cultural appropriation that misrepresents a marginalized group can be thought of as producing a kind of controlling image. These controlling images affect how members of a marginalized group are viewed, and create conditions that constrain their ability to be heard when speaking about their culture on their own terms.²⁹

On the other hand, cultural appropriation can also involve members of a dominant group correctly representing members of a marginalized group. Matthes explains that even such accurate representation can be harmful, because it can serve to reinforce the credibility excess of members of the dominant group and exacerbate the credibility deficit of members of the marginalized group. He argues that these accounts of epistemic injustice capture many of the common concerns expressed in the non-philosophical literature on cultural appropriation. For example, Loretta Todd invokes the importance of cultural autonomy in terms of a right to tell one’s origins and histories without mediation from outsiders.³⁰

If cultural appropriation is implicated in epistemic injustice in the way that Matthes suggests, we can see how cultural appropriation would set back the interest of members of marginalized groups in having a reasonable level of control over how they present themselves to others. Nguyen and Strohl’s criticism of oppression-based explanations of cultural appropriation was that such accounts only generate independently-grounded claims. In other words, such claims only apply in cases where the appropriative act in question in fact contributes to the types of epistemic injustice identified by Matthes. The oppression account thus falls short of generating claims of an expressive nature.

However, there are two paths available that build on the oppression account to generate the type of claims that Nguyen and Strohl sought to defend. These generate group ownership claims with respect to cultural objects. The first path proceeds in response to the phenomenon of stereotype threat. This path generates the strongest case in favour of ownership-based appropriation claims, though concerns may be raised about the robustness of evidence supporting the existence or extensiveness of stereotype threat itself. The second path proceeds through egalitarian concerns that arise in the face of conditions of epistemic injustice that Matthes outlines. Both paths present the notion of group ownership claims over cultural objects as a redress to the way in which these conditions of oppression set back the self-presentation interest of members of a marginalized group.

The most direct way in which conditions of oppression can undercut the self-presentation interest is through the phenomenon of stereotype threat. Stereotype threat is a psychological threat that has been hypothesized to affect people who are subject to stereotypes in different domains. The threat arises when a person is aware of the risk of conforming to the stereotype attached to their group in a certain domain, and such awareness affects their behaviour or performance in the relevant domain.³¹ Research on stereotype threat has identified its effects across a wide range of social groups and stereotypes.³² While many of the studies have focussed on the effects of stereotype threat on specific domains of performance, Stacey Goguen has argued that the phenomenon has a much wider scope.³³ Goguen argues that stereotype threat can induce self-doubt to such an extent that it undermines a person’s own faith in their rationality or sense of self, impacting behaviour, interests and motivation.

If we accept the potentially wide-ranging effects of stereotype threat, we can characterize the phenomenon as a direct threat to a person’s ability to exert a reasonable measure of control over how they present themselves to others. The perniciousness of stereotype threat is that it not only affects how others perceive us, but it can also impact a person’s ability to develop her own sense of identity to present to others in the first place. While there is room for debate over how to understand the threshold of reasonableness for how much control individuals should have over their self-presentation, the ability to exert such control in the first place must be a prerequisite for satisfying the interest in question. Stereotype threat thus presents a direct and serious threat to the interest in self-presentation.

From here, we can build out the case for group ownership claims over cultural objects. The case is premised on the idea that ownership claims over cultural objects provide a way of counteracting the threat posed by background conditions of oppression such as stereotype threat for members of a stereotyped group. They do so by putting control over the use of cultural objects that play a role in the representation of identity directly back into the hands of group members. Crucially, ownership claims are required as a form of redress, because the circumstances are such that relying solely on independently-grounded claims is insufficient to secure a reasonable measure of self-presentational control for members of the stereotyped group.

Recall that the normative significance of independently grounded claims is derived from the causal connection between a given use of a cultural object by an outsider, and the oppression to which that use contributes. Given the structural nature of the forms of epistemic injustice that Matthes argues are implicated in cultural appropriation, it is likely to be difficult to assess precisely which uses of cultural objects in fact contribute to the oppression faced by marginalized groups. This concern is compounded by the nature of stereotype threat. If stereotype threat can function to undermine a person’s confidence in their own epistemic capacities, it stands to reason that it would also impede a person’s ability to confidently identify the causal link between an outsider’s use of a cultural object and structures of oppression.³⁴ This type of background oppression thus functions to constrain the ability of members of marginalized groups to confidently identify and assert independently grounded cultural appropriation claims, or to be able to communicate those claims successfully to cultural appropriators when subject to testimonial injustices such as credibility deficit.

The practical effectiveness of independently grounded appropriation claims is therefore heavily constrained by the very conditions from which they derive their normative weight. This weakens their potency as a mode of protection for the interest we have in being able to exert a reasonable measure of control over how we present ourselves to others. In contrast to independently grounded claims, ownership claims do not require individual claimants to navigate the difficulties of identifying the causal link between specific uses of cultural objects and structures of oppression. These claims get to have normative weight just by virtue of a member of the marginalized group asserting the claim. The ownership-based appropriation claim takes the simple form, “don’t use that, it’s ours.” Such claims provide a more effective remedy against the oppressive conditions that set back the control interests, because group members’ ability to effectively assert those claims is less likely to be constrained by the oppressive conditions in the first place.

One might object here that the ownership account still requires us to be able to identify the relevant oppressive conditions that justify and give rise to the category of ownership-based appropriation claims in the first place. Insofar as it requires us to be able to do that, the ownership account simply pushes the problem back one step, leaving claimants in no better position to reliably identify when they are in a position to exert ownership claims over cultural styles. However, there is a distinction between requiring a justification for the general category of ownership-based appropriation claims, and an account that requires independent justification for each individual claim that is made. Focussing on what it takes to be a competent claimant on each account helps to draw out the significance of the distinction, in response to the current objection.

On the ownership-based account, what’s required in order for people to competently exert appropriation claims is some awareness that they are in a position to be able to make such claims. Such awareness does not require detailed understanding of the justificatory conditions of the system of claims in place. It requires only that people be aware that they are a member of a social group which has some claim to ownership of their cultural styles, and that as a member of that group, they have standing to exert those ownership claims.

As Nguyen and Strohl point out, many members of relevant social groups already assert these types of claims. In other words, there is already an emerging convention of recognising and asserting the ownership claims of marginalized social groups over their cultural objects. What this article provides is an argument to explain why such conventions are normatively justified. The point is that one can operate as a competent claimant within a normatively justified convention of which one is aware, without requiring knowledge of its justificatory conditions.

As an example, consider existing systems of property rights. Most people competently exert ownership claims over their property, despite often lacking a detailed understanding of existing property law, or the theory that explains the normative justification of systems of private property in the first place. It is sufficient to operate as a competent owner that one has a general understanding of the way in which ownership allows us to control access to our things, and that one is the designated owner of some thing. With those conditions in place, an owner can competently control other people’s permission to access their stuff without having to appeal to any independent justification for doing so. The category of ownership-based appropriation claims can thus function as an effective remedy to existing conditions of injustice as long as there is some existing practice that makes people aware that they are able to make such claims. By contrast, on the oppression or harm-based accounts of the wrong of cultural appropriation, in order to be a competent claimant, one would need to be able to reliably identify the independent justification for asserting the claim in most cases.

From this perspective, we can think of ownership-based appropriation claims having normative weight under the following conditions. The first condition is the importance of the cultural object in question to a group’s sense of identity, in a way that is sufficiently distinct to the group. The second is that some uses of that cultural object by outsiders have contributed to structures of oppression that undermine group members having a reasonable measure of control over how they present themselves to others. Third, those oppressive structures are such as to constrain the practical effectiveness of independently grounded appropriation claims in the protection of the self-presentation interest. Under those conditions, ownership-based appropriation claims arise to redress the balance of interests back towards establishing a reasonable measure of control over how members of the relevant social group present to others. These claims involve invoking a notion of group ownership over the cultural objects in question. They take the form, “don’t use that, it’s ours.”

The case in favour of such ownership claims is stronger, the more direct the threat posed to the self-presentation interest. I have outlined above how stereotype threat can pose such a direct threat. However, the robustness of the evidence in favour of the wide-ranging effects of stereotype threat is contested. There are also concerns that the extent to which stereotype threat undermines subjects’ autonomy or decision-making ability is overblown, in a way that serves to further marginalize people who already face negative stereotyping. Ron Mallon, for example, has argued that the behavioural responses that have been recorded under stereotype threat are best explained as intentional and strategic responses by agents to their situation.³⁵ Mallon argues that this personalist approach best explains the phenomena of stereotype threat, and is better placed to treat the subjects of stereotype threat as reason-governed and responsible agents. The personalist approach to stereotype threat would undermine the claim that stereotype threat directly impedes a person’s capacity to control how they present themselves to others.

However, there remains a second avenue to defending appropriation claims based in group ownership. The second route proceeds via the recognition that under the conditions of epistemic injustice discussed above, the ability of members of marginalized groups to present themselves to others on their own terms is still constrained, in the sense that members of dominant groups hold power to shape the social scripts and stereotypes about marginalized groups. Given that the same concerns hold about the practical effectiveness of independently grounded appropriation claims under conditions of epistemic injustice, we can then generate a case in favour of ownership-based appropriation claims as a remedy to the imbalance in control over how the identity of members of marginalized groups is presented to others.

This case is weaker than the case generated by stereotype threat, to the extent that it brings us closer to the difficult questions about the threshold for what counts as having a reasonable measure of control over how we present ourselves to others. However, given the perniciousness of the forms of structural injustice outlined above and their impact across important aspects of a life, it is plausible to suggest that the balance of interests is tipped in favour of ownership-based appropriation claims for members of marginalized groups.

A note here about the scope of this account. Insofar as it relies on an interest in self-presentation, it will not extend to cultural objects which do not play a role in the public presentation of one’s identity. Food and the use of culinary styles might be one such area where the account would suggest that ownership-based appropriation claims do not arise. However, questions about cultural appropriation of food often arise in cases where outsiders are not just using, but profiting from, a culinary style. These raise complex questions about how the interest in self-presentation is affected by the economic context. The interplay between group identity, socio-economic status, and the way that stereotypes become attached to certain culinary styles might well affect who is able to present themselves as having a certain kind of public identity, for example, a fine-dining chef, or a restaurateur of haute cuisine.³⁶ There is not space here to provide a full account of the interplay between self-presentation and the economic context, but it is worth further exploration elsewhere.

In the other direction, the focus on self-presentation might widen the scope of the account beyond cultural appropriation claims. Stereotypes about social groups can be proliferated in ways that do not make use of cultural styles, but that nevertheless affect the interest in self-presentation. The interest in self-presentation can underpin other kinds of claim. Its connection to the right to privacy was briefly discussed above. One might also make a case for defining hate speech as a form of group defamation, and understanding defamation as protecting an interest in self-presentation.³⁷ However, the account outlined here provides support for a category of claims that can still be distinctively understood as ownership claims insofar as they apply with respect to cultural objects, and are claims of an expressive type. Claims against defamation, by contrast, involve reference to independent harm.

An objection may be pressed at this point that the case I have presented for appropriation claims fails to establish group ownership over cultural objects. The objection starts from the observation that ownership usually works in the following way. When I own something, nobody else is permitted to use my property until I consent to their using it. Claims against cultural appropriation appear to work the other way around, in the sense that there is no general prohibition against outsiders making use of some cultural object until a member of the cultural group objects to some specific use of the object by asserting an appropriation claim. This would make appropriation claims disanalogous to ownership claims. If such claims really are based in group ownership, then we should think that there is a general prohibition against outsiders making use of cultural objects from marginalized groups, unless consent has been secured. However, taking that approach to the structure of group ownership rights puts added pressure on the case for ownership in the face of the reasonableness test. That kind of sweeping prohibition against style appropriation would radically restrict opportunities to engage in iterative creativity.

In response, we can note that ownership sometimes does take the form of there being a general permission to make use of some item of property, until the owner objects to such use. The way in which land rights are constrained by Scotland’s Land Reform Act is one example.³⁸ Under the act, the general public has a right to access and use privately owned land, with certain exceptions such as land with a house on it, or which is enclosed and used as a private garden. We can make the case for group ownership of cultural objects working in a similar way, where there are significant competing interests to balance against the importance of protecting the self-presentation interest of members of marginalized groups. In light of this, a structure of ownership which generally permits for use of cultural objects by outsiders unless group members assert appropriation claims against such use may be best placed to strike a reasonable balance in the protection of the competing interests at play.

Finally, because of complications that arise with the deployment of expressive appropriation claims, if consent were required to permit any use of cultural objects by outsiders, this would heavily constrain the possibilities of permissible use, because as we’ll see in Section IV, there would only be very limited contexts in which group members would be able to effectively deploy consent.

IV. COMPLICATIONS FOR DEPLOYMENT AND CONTEXT-DEPENDENCY

Having established the case for ownership-based appropriation claims, we now turn to complications for the deployment of these claims. Nguyen and Strohl discuss some key difficulties for establishing when the use of cultural objects by outsiders amounts to wrongful cultural appropriation. The first is the difficulty of defining the conditions of group membership such that a distinction can be made between group members and outsiders.³⁹ This boundary problem raises tricky questions about how to define groups without reinforcing cultural essentialism in a way that further perpetuates damaging stereotypes.⁴⁰

A further, related challenge is to identify the conditions in which it is possible for individuals to self-identify as a member of a given social group, given that self-identifying as a member of group X and being able to present as such can be deeply important aspects of a person’s sense of self. These boundary questions bear on which individuals have standing to make appropriation claims with respect to a given group’s cultural styles. We will set aside those boundary problems here, and assume that there are adequate ways of defining the membership criteria for most relevant social groups, even if the precise content of those definitions is contested.

Instead, we will focus on a difficulty that poses a deeper problem for the deployment of appropriation claims. That is the presence of disagreement among group members as to which uses of cultural objects by outsiders should be excluded. The problem derives in part from the fact that many social groups are sub-agential, in the sense that they lack defined procedures for collective decision-making. When group members disagree about which outsider uses of cultural styles to object to, there is no way to identify a decision that could be attributed to the group as a whole.⁴¹ From the ownership-perspective developed here, we can see this as a problem for identifying who has authority to decide when to make an appropriation claim.

In response to this problem, Nguyen and Strohl suggest that sub-agential groups can sometimes approximate univocal decisions about the boundaries of their intimate practices.⁴² In such cases, it will be sufficiently clear that outsiders should refrain from using the cultural styles in question. In many cases, however, even approximate consensus will be lacking. In those cases, Nguyen and Strohl argue that we are left with a situation in which the normative status of cultural appropriation is indeterminate, and so any outsider facing a decision about whether to take up an invitation to participate in some cultural practice will be left in an uncomfortable situation.

The contention that disagreement leaves us in a situation of discomfort might suggest that the indeterminacy in question is a type of epistemic indeterminacy. On this reading, one might think that there is a fact of the matter as to whether or not the outsider’s use of the object constitutes cultural appropriation by infringing an intimate boundary of the group, but that we have no way to reliably identify whether or not that is the case.

However, that picture of epistemic indeterminacy does not fit well with Nguyen and Strohl’s account of the importance of expressive appropriation claims to protecting intimacy. Their verdict in the interpersonal case of intimacy was that the boundary of intimacy is set wherever the couple decides to set it. The normative significance of expressive appropriation claims over intimate group practices was that the decision itself settles the boundary of intimacy. If there is no way for the group to make a collective decision about where the boundary stands, then the very conditions for establishing the boundaries of intimacy fall away. This undercuts the case for the normative significance of expressive appropriation claims. It turns out, then, that expressive appropriation claims are only normatively grounded in cases of group consensus or for sufficiently agential groups with set decision-making procedures. In cases of disagreement among sub-agential groups, we should just say that expressive appropriation claims are not possible, so there is no possibility that an outsider’s use of a cultural style violates an expressive claim and is thus appropriative. There remains the possibility that such use could be oppressive or harmful and thus fall foul of the constraints of the oppression and harm-based accounts of the wrong of cultural appropriation. But under conditions of disagreement about putative expressive claims, there can be no expressive claims with normative force.

The same problem bites for the ownership account, in a slightly different way. This account is premised on a concern to protect individuals’ interest in self-presentation. That interest is set back under certain conditions of oppression. The normative significance of ownership-based appropriation claims was derived from the thought that for individuals who face stereotyping by virtue of being members of some social group, asserting ownership-type control over cultural objects that are significant to the group’s identity provides a way to safeguard the self-presentation interest.

While this account makes reference to the importance of the cultural objects in question to a sense of group identity, the case for ownership-based appropriation claims does not rest on the importance of securing the identity of the group itself. Rather, it recognizes that when membership of some social group is important to an individual’s sense of self-identity, being able to exert ownership-type control over that group’s cultural objects in the face of stereotyping offers a way to safeguard the control interest of those individuals. The focus is on protecting the control interests of individuals qua group members, rather than protecting the identity of the group as such. In order for expressive appropriation claims to be effective from that individualist perspective, it must be the case that individuals can effectively assert those claims.

Disagreement among group members will therefore undercut the conditions of ownership-based appropriation claims for the same reasons that applied in the intimacy case. Unless there is consensus among group members, the opposing claims of individuals will undercut each other’s ability to exert the normative control required to protect their control interest. On both the intimacy and ownership accounts, disagreement undercuts the original justification for the normative significance of appropriation claims. Given the importance on the ownership account of each individual being able to assert such claims for themselves, nothing short of full consensus will suffice, in contexts where several group members are aware of the appropriation claims being deployed.

In practice, the improbability of full consensus among a social group about which uses of cultural styles by outsiders to assert appropriation claims against renders the possibility of the normative significance of such claims unlikely in many, if not most, cases in which cultural appropriation might be claimed. The ownership account nevertheless leaves open the possibility that individual group members could successfully deploy such claims in restricted social contexts where there is consensus among the group members who are present in the context in which outsiders are making use of the cultural object in question. Such conditions are most likely to pertain in localised contexts in which there is both a small number of group members and where the uses of cultural objects to which they object are not publicized beyond that local context. This is so because the use of the cultural object in question is localised so as to only impact those group members who are aware of it in the local context. Additionally, the deployment of the appropriation claim will not undercut any other group member’s interest in having a reasonable degree of control over how they present themselves to others in their own social context. This is because they will be aware of neither the appropriative act in question nor of the deployment of the appropriation claim. Individual group members in localised contexts thus circumvent the problem of disagreement.

Such circumvention is not open to the intimacy account, because of the way it makes reference to the boundary of intimacy as it pertains to the group. On that account, expressive claims deployed by individuals necessarily make reference to and have effect on some property shared by the whole group (their intimate boundary). Because of that, whenever an individual successfully deploys such a claim, the whole group is affected as a result.

While both the intimacy and ownership accounts face a problem from disagreement, the ownership account can still retain space for the possibility of normatively significant appropriation claims in restricted contexts, as long as there is full consensus among members present in a suitably localised context. By contrast, the intimacy account cannot allow for localised claims made by individuals in contexts where group members outside of that context might disagree, though it can allow for expressive claims in cases that approximate consensus across the whole group.

V. CONCLUSION

I have argued that there is good reason to defend claims against cultural appropriation as claims that are expressive in form, rather than independently grounded. Nguyen and Strohl’s intimacy account fails to establish such claims. However, an alternative basis for such claims is available via an account of group ownership, the justificatory grounds of which arise under conditions of oppression. Conceiving of cultural appropriation claims as ownership claims aligns with the way in which such claims are often asserted in public discourse. However, an analysis of the basis of such claims also reveals their context-dependency.

The ownership account still leaves room for oppression- or harm-based accounts of the wrongness of cultural appropriation. In contexts where ownership-based claims against cultural appropriation are not possible, it may still be the case that uses of cultural styles by outsiders are wrong insofar as they cause harm to or perpetuate the oppression of some social group.

Note, however, that on the oppression and harm accounts, cultural appropriation no longer stands as a distinct category of wrong. Instead, the objection to certain uses of cultural styles by outsiders boils down to an objection against oppressive or harmful actions. It just so happens that these are modes of oppression or harm which involve the use of a cultural object. In light of this, it would serve to clarify discussions about uses of cultural objects to distinguish between different categories of wrong by reserving the term ‘cultural appropriation’ for cases which involve ownership-based appropriation claims. Other cases could be referred to simply as oppressive or harmful uses of cultural objects.

The argument pursued here might seem very narrow in scope. It carves out only a limited space for ownership claims in the domain of cultural appropriation, given contextual constraints on the normative grounding of such claims. However, the overall structure of the argument opens up a new perspective on ownership that has the potential to shed light on the normative significance and function of ownership claims across a range of domains in which important control interests are at stake, and where the mechanisms to protect those interests are contested or uncharted. Moreover, it reveals the way in which conditions of injustice may give rise to ownership claims which would not be justifiable on the balance of interests in a more just society.

The more general upshot of this article is that ownership claims play an important role in structuring the social standing of individuals, by protecting their ability to present themselves to others on their own terms. This perspective on the role of ownership claims stands to shed light on domains where individuals have an interest in exerting control over objects that are significant to their self-identity and self-presentation, even and perhaps especially where those objects are publicly reproducible and amenable to manipulation or distortion by other people. The notion of ownership rights as justified by reference to their role in structuring the social standing of individuals warrants further exploration.

ACKNOWLEDGEMENTS

Earlier versions of this work were presented at a workshop on Private Property and Competing Interests at the University of Zurich, at the Annual Conference of the British Postgraduate Philosophy Association, and to colleagues at York. For reading draft versions of the work and providing insightful comments, I owe particular thanks to: Yara Al Salman, Showkat Ali, Euan Allison, Andreas Cassee, Ane Engelstad, Jessica Fischer, Dan Guillery, Owen Hulatt, Jack Hume, Rowan Mellor, Filippa Ronquist, Kenta Sekine, Nikhil Venkatesh, Juri Viehoff, and Katy Wells.

COMPETING INTERESTS

The author declares that she has no competing interests.