Former teen pop group OMG Girlz is back in a California courtroom today claiming that doll maker MGA Entertainment ripped off its name, style, and likeness.
The singers’ belief that their work as Black female entertainers also was stolen won’t—however—be at issue.
The new trial follows a courtroom battle where testimony on the claim of “cultural appropriation” was introduced against the judge’s orders, leading to a January mistrial, a volley of racism allegations, and demands for sanctions.
“In American jurisprudence, there’s no claim for cultural appropriation,” said Kevin J. Greene, a professor teaching intellectual property at Southwestern Law School. “There’s no consensus on a definition of even what cultural appropriation is.”
Allegations of cultural appropriation were first spurred in the case when the group claimed MGA Entertainment’s L.O.L. Surprise! O.M.G Dolls were intentionally designed to look like members of the band.
“MGA’s stealing from, rather than collaborating with the Black creators who over many years worked to develop the OMG Girlz brand, is a classic example of cultural appropriation,” the group said. But that allegation was removed in subsequent filings and banned from being mentioned at the retrial, which begins Tuesday in Los Angeles.
The inability to litigate cultural appropriation has left artists and communities struggling to combat companies that, they argue, seek to monetize their cultures.
Though there are some protections granted to indigenous communities, attorneys say it is extremely difficult for others to defend themselves against cultural appropriation through the litigation channels that IP law affords.
‘Long History of Borrowing’
The biggest hurdle to introducing arguments of cultural appropriation in court may be the first one: defining the term. There’s no unanimous understanding as to what constitutes cultural appropriation, said Aman Gebru, an academic at the University of Houston Law Center.
“We’re working in the background of a long history of borrowing—a constant state of borrowing from each other,” he said. “And so the question is: ‘What type of borrowing is okay and what type is not?’”
Borrowing cultural symbols for personal or nonprofit use is generally acceptable, said Gebru. But as soon as companies attempt to make a profit off of them, complications arise “because somebody is making money off of value that was created by others, and they’re not being honest about it.”
In the OMG Girlz case, after the band dropped its cultural appropriation claim, Judge
Greene said the judge may have been concerned that the introduction of such claims would prejudice the jury by addressing the racial dynamics underlying the case.
“That ties right into what people in critical race theory say—that the law can kind of tamp down and basically continue these processes of subordination of marginalized communities,” Greene said.
“That was to me was the most disturbing, that he said that information couldn’t come in at all.”
Selna will also preside over the retrial, ahead of which he denied MGA Entertainment’s attempt to introduce evidence that the OMG Girlz stole elements of their looks from MGA Entertainment’s Bratz and Moxie dolls.
‘Pick a Lane’
This isn’t MGA Entertainment’s first time grappling with cultural appropriation allegations.
In 2020, a Black influencer alleged that MGA Entertainment’s L.O.L Surprise! “Rainbow Raver” doll used her likeness without permission. MGA Entertainment’s founder and CEO Isaac Larian responded to these allegations on Twitter, calling the influencer a liar and a “disgrace to Black people” in since-deleted tweets. Though the issue wasn’t raised in the legal arena, it parallels the OMG Girlz’s original allegations.
Cultural appropriation is “not a real claim you can make so much as something that contributes to the optics and the publicity around the litigation,” said Alexandra Roberts, a professor at Northeastern University School of Law, adding that US law effectively pushes litigants to make cultural arguments in the context of a more established category of IP.
“Its kind of like, pick a lane—is it trademark, is it copyright, what category does your infringement go in?”
Most cultural appropriation claims center around the use of an individual or community’s dance styles, fabrics, clothing, music, symbols, and drugs or medicinal practices.
Despite cases of clear commercialization, however, cultural appropriation remains difficult to prove in the trademark sphere—and even more so when it comes to copyright claims.
Gebru said that for centuries, dominant cultures have borrowed marks and symbols from a source community without attribution or consent and used them in commerce without raising awareness about the background it has in that originating community.
“The structure of copyright law is that it’s seeking to reward a single author—fundamentally is different from the ways indigenous peoples and local communities have been expressing themselves, which is this communal way.”
It’s a “winner takes all sort of system,” said Gebru.
Protective Frameworks
The Arts and Crafts Act of 1990 prohibits misrepresentation in marketing Native American crafts, creating a framework for indigenous communities to combat cultural appropriation. The Navajo Nation sued Urban Outfitters Inc. under that law over the company’s use of its name and artistic style, securing a settlement in 2016.
In 2022, Mexico introduced a ban on the unauthorized use of indigenous art and design, which permits up to a 10-year prison term for illicitly producing or selling indigenous works. The World Intellectual Property Organization is also examining international protections for traditional cultural expressions.
Nevertheless, eliciting public outcry has arguably been the most effective method for communities and individuals seeking to prevent the use of their heritage and cultural works without permission.
Gwen Stefani drew criticism in 2004 with her use of backup dancers known as the “Harajuku girls” in her performances and as her entourage, as did Rihanna in 2021 when she wore a pendant bearing the likeness of Hindu deity Ganesha.
Following backlash against popular TikTok creators Addison Rae and Charli D’Amelio for performing dances by creators of color without crediting them—on the social media platform and in Rae’s case other platforms, including The Tonight Show with Jimmy Fallon—Rae apologized and took steps to ensure the creators were credited.
And after a series of ongoing lawsuits by artists of color against Epic Games over the alleged use of creators’ dances without credit as Fortnight “emotes,” Epic Games has begun licensing and compensating for such dance moves irrespective of their copyrightability on a case by case basis, according to Bhamati Viswanathan, a professor at New England Law.
Future Protections
While public accountability can be effective, it still leaves the power in the hands of those who are appropriating, said Viswanathan
“We need to go before courts and say, ‘Look, we’re working within the confines of the IP structures and frameworks and we will bring a claim under IP, but the systemic practices, this entire array of practices, that end up being discriminatory and their impact need to be taken into consideration,’” she said.
According to Greene, protections against cultural appropriation may look different from community to community, and the structures being put in place for indigenous peoples could prove ineffective or even counterproductive for others, given the differences in cultural expression across communities.
“I don’t know how well that works for the Black community, quite honestly,” he said. “And there are some free speech or free expression issues around doing that.”
Pushing to litigate cultural appropriation in court now would be “making a new claim which doesn’t exist in American law,” Greene said. He referenced the arguments made in Brown v. Board of Education, the landmark US Supreme Court decision that overturned the regime of “separate but equal” public facilities based on race.
“They basically said, ‘No, that’s not what the law should be,’” Greene said of those who fought against legal racial segregation. “That’s a noble thing to do, but if you do it, you’ve got do it right.”
The case is MGA Entertainment Inc. v. Harris et al., C.D. Cal., No. 2:20-cv-11548, trial start 5/9/23.
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