By: Shelly Feldman, Associate Editor, Vol. 27
In many areas of the law, facially neutral legal doctrines do not affect groups equally in practice.[i] This is well known and documented in America’s criminal justice system, which has historically oppressed racial minorities in disproportionate numbers.[ii] Though less known, this is also true in civil law and intellectual property law specifically.[iii]
Intellectual property law governs the ownership of information.[v] “Intellectual property” “refers to creations of the mind: inventions; literary and artistic works; and symbols, images, names, and logos” among others.[vi] The goal of intellectual property law is to protect intangible assets[vii] and enforce the rights of their creators and owners,[viii] enhancing their competitive advantage in the market.[ix] Copyright law protects creators of works when others use (“use” meaning through copying, displaying, or presenting) those works without permission.[x]
When intellectual property law deems works protected, it sends a message that those works are valuable and contribute to societal growth and public knowledge.[xi] In contrast, infringers use works without permission from their creators and are thought to adversely impact economic growth and knowledge.[xii] The United States Constitution granted rights to creators and owners through the Patent/Copyright clause in Article I, Section 8.[xiii]
This post will focus on copyright law and the disproportionate lack of protections the U.S. copyright system provides to Black creators.[xiv] This is especially significant given that Black creators have greatly contributed to American arts, including music and literature, and popular culture.[xv] No racial or ethnic group has been more influential in the American music movement.[xvi] Black jazz artist Louis Armstrong, for example, is said to not only have greatly influenced jazz, but rather all types of music.[xvii]
It is undisputed that individual Black creators have benefitted from the U.S. copyright system, but the system’s deprivations have also hurt the Black community at large.[xix] Segregation and discrimination have hurt the overall production of Black Americans.[xx] When works lack protection by law, the incentives theory of intellectual property suggests that creators will produce less.[xxi] The exclusion of Black artists from the radio and certain venues led to a proliferation of cover recordings of Black artists’ works by white performers.[xxii] Many times, white performers ended up imitating Black works after their creation and performing them in a way that negatively portrayed Black culture so as to please white audiences.[xxiii] Black women artists in particular, “who in essence launched the modern recording industry with the advent of blues”[xxiv] have been hurt and subordinated because of both their race and gender.[xxv]
There is a history of infringement of Black artists’ works in the music industry.[xxvi] European-American society has historically claimed Black-originated music as its own.[xxvii] The 1909 Copyright Act included complex notice and publication requirements that many Black artists were unaware of.[xxviii] This led to the loss of protection for many iconic works, which in turn fell into the public domain to be used by anyone freely. [xxix] This was true for Blues artists in particular.[xxx] Under the 1976 Copyright Act, though amending these confusing formality requirements, Black artists from the 20th century are still facing aggressive, expensive copyright litigation battles for their works.[xxxi]
There is also a history of cultural appropriation and economic exploitation of Black works.[xxxii] The lack of recognition given to Black artists led to the devaluing of their works as compared to white works.[xxxiii] Black artists stood by and watched while less talented white performers economically benefited from performing their works.[xxxiv] Black artists’ managers would also register copyrights for works not under the artists’ names or transfer copyrights to record companies or managers, [xxxv] depriving Black artists of what would later be commercial success.
The personhood theory of intellectual property recognizes that the creative process “implicates the honor, dignity, and artistic spirit of the artist in a fundamentally personal way.”[xxxvi] When the works of Black artists are appropriated or copied without permission, their moral rights of integrity and attribution are harmed.[xxxvii] Misappropriation of personal property of Black works hurts on both a personal and spiritual level, as many works reflect the intense, personal, and spiritual experience of being Black in America.[xxxviii]
Other “neutral” aspects of copyright law have also harmed Black artists.[xl] To get protection under the 1976 Copyright Act, a work must be original and fixed in a tangible medium of expression, whether published or unpublished.[xli] Prior to the amendment of the 1976 Copyright Act, however, works had to be reduced to writing to get protection.[xlii] Because of educational segregation and deprivation, many Black artists were illiterate and could not write.[xliii] Some styles of music, like jazz, and other forms of expression tend to be more incompatible with written notation.[xliv] The low bar for originality of a work[xlv] also favors imitation of Black works,[xlvi] as imitators will not face difficulty in showing the “creativity” of their work and, accordingly, get copyright protection. The idea-expression doctrine, under which expressions of creators are protectable but the ideas expressed in the works are not, has also denied protection to Black blues, jazz, and rock artists of their personal styles and the creation of genres like jazz and rap.[xlvii] Imitation of specific styles and genres, then, has typically not been actionable in court,[xlviii] leaving Black creators of styles and genres with few legal options when their work is imitated.
There has been a growth of scholarship in recent years analyzing intellectual property law’s impact on minorities and indigenous people.[xlix] Awareness of intellectual property’s disproportionate impacts on these groups can increase equality[l] and lead to better laws. Critical Race Intellectual Property has also emerged as a movement focused on the racial and colonial non-neutrality of intellectual property regimes, including copyright.[li] Its goals include “reconstructing racial and neo-colonial hierarchies in the evolving contexts of intellectual property,”[lii] especially important in a rapidly changing world where infringement is easier than ever because of technology. Discussing intellectual property’s racial impacts can be productive for thinking about addressing both racism and social injustice in intellectual property law.[liii] In addition to remedying past discrimination, a critical race focus on intellectual property law regimes will also help ensure history is not repeated.
In addition to public awareness and scholarship, there are other proposed solutions out there that are focused on ensuring adequate intellectual property protection for groups that have faced legal and economic obstacles.[liv] These include improving access to legal services, increasing protection of personal rights in works, and heightening the originality standard needed to obtain copyright protection.[lv] Further, increasing scrutiny of copyright applications may help address disparities resulting from intellectual property laws.[lvi]
[i] See K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, Hastings Communications and Entertainment L. J. 339, 385 (1998), https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1514&context=hastings_comm_ent_law_journal.
[ii] See Caleb Green, United States: Patently Unfair: Racial Inequality Through The U.S. Intellectual Property Legal System, mondaq (2021), https://www.mondaq.com/unitedstates/trademark/1032330/patently-unfair-racial-inequality-through-the-us-intellectual-property-legal-system.
[iii] Id.; See generally K.J. Greene, Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues, J. of Gender, Social Policy & The Law 365 (2008), https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1040&context=jgspl.
[iv]Intellectual Property Pictures, Images and Stock Photos, iStock, https://www.istockphoto.com/photos/intellectual-property.
[v] Anjali Vats, The Color of Creatorship: Intellectual Property, Race, and the Making of Americans (Introduction) (2020), https://scholarship.law.pitt.edu/cgi/viewcontent.cgi?article=1032&context=fac_book-chapters.
[vii] Int’l Trade Admin., Protect Intellectual Property, https://www.trade.gov/protect-intellectual-property.
[viii] See Georgetown Law, Intellectual Property Law, https://www.law.georgetown.edu/your-life-career/career-exploration-professional-development/for-jd-students/explore-legal-careers/practice-areas/intellectual-property-law/ [hereinafter Intellectual Property Law].
[x] Intellectual Property Law, supra note viii.
[xi] See Vats, supra note v.
[xiii] Greene, supra note ii at 365.
[xiv] See Green, supra note ii.
[xv] Greene, supra note i at 361, 364.
[xvi] Id. at 361.
[xvii] Id. (citing Dan Morgenstern, Jazz People 81 (1976)).
[xviii] Evan Andrews, 9 Things You May Not Know About Louis Armstrong, History (2018)https://www.history.com/news/9-things-you-may-not-know-about-louis-armstrong.
[xix] Greene, supra note iii at 369.
[xxi] Seana Valentine Shiffrin, The Incentives Argument for Intellectual Property Protection, Intellectual Property and Theories of Just. (2008), https://link.springer.com/chapter/10.1057/978-0-230-58239-2_5.
[xxii] Greene, supra note i at 369.
[xxiii] Id. at 373.
[xxiv] Greene, supra note iii at 381.
[xxvii] Id. at 371.
[xxviii] Green, supra note ii.
[xxx] Greene, supra note i at 368.
[xxxi] Green, supra note ii.
[xxxii] Greene, supra note i at 368.
[xxxiii] Id. at 369–70.
[xxxiv] Id. at 370–71.
[xxxv] Id. at 372.
[xxxvi] Greene, supra note iii at 373 (quoting Roberta Rosenthal Kwall, The Attribution Right in the United States: Caught in the Crossfire Between Copyright and Section 43(A), 77 WASH. L. REV. 985, 986 (2002)).
[xxxviii] Greene, supra note i at 374.
[xxxix]The Persistence of Individuality in the Workplace, OSA Training & Education,https://osa.ph/the-persistence-of-individuality-in-the-workplace/.
[xl] Greene, supra note iii at 370.
[xli] See 17 U.S.C. § 102(a) (1976).
[xlii] Greene, supra note i at 378.
[xliv] Id. at 379.
[xlv] See Feist Publ’n. Inc., v. Rural Tel. Servs. Co., 499 U.S. 340 (1991).
[xlvi] Greene, supra note i at 381.
[xlvii] Id. at 383.
[xlviii] See id.
[xlix] Greene, supra note iii at 383.
[l] See id.
[li] See Anjali Vats & Deidré A. Keller, Critical Race Intellectual Propety, Race, Racism & The L. (2018), https://racism.org/articles/basic-needs/propertyland/218-intellectual-property/2209-critical-race-intellectual-property.
[liii] See id.
[liv] Greene, supra note i at 387.
[lv] See id. at 389–91.
[lvi] See Green, supra note ii.