Tuesday, February 25, 2020


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Elizabeth L. Rosenblatt



Excerpted From: Elizabeth L. Rosenblatt, Copyright's One-way Racial Appropriation Ratchet, 53 U.C. Davis Law Review 591 (December 2019) (301 Footnotes) (Full Document)


ElizabethRosenblattIn 1997, a Rolling Stone reviewer described the music of Grammy-winning recording artist Beck as incorporating a "cross-pollination of styles--from hip-hop to country rock to funky seventies soul--[which] has shown him to be one of the most innovative and forward-looking artists of the nineties." Beck's award-winning song "Loser" samples prominently from blues guitarist Johnny Jenkins. Beck is, in fact, part of a long tradition of musicians who obtain copyright on works that build on "folk" sources, but threaten legal action when others use their work as the basis for similarly transformative art. The art collective "Illegal Art" made a CD entitled "Deconstructing Beck" containing songs that provided, in the words of one reviewer, "witty commentaries on their source" and "a manic roller coaster ride through Beck's unconscious." But the only thing that saved them from copyright liability may have been the fact that Beck's record label couldn't identify them well enough to serve a complaint.

While Beck gained acclaim and copyright power for his sampling activities, the Sixth Circuit sent a very different message to hip-hop musicians N.W.A.: "Get a license or do not sample. We do not see this as stifling creativity in any significant way .... When you sample a sound recording you know you are taking another's work product." Then, in 2016, the Ninth Circuit disagreed with the Sixth Circuit, holding that it is possible to engage in de minimis copying of a sound recording. But whereas in the Sixth Circuit, the (infringing) defendant was a vocally anti-authoritarian African American group, in the Ninth, the (non-infringing) marquee defendant was Madonna and the plaintiff was a group of African American soul musicians.

These contrasts demonstrate what I describe as "copyright law's one-way racial appropriation ratchet": dominant cultures appropriate from minorities with impunity, but when minorities appropriate from dominant culture, they find legal challenge and moral condemnation.

There are cases that go the other way, too. But while one might reasonably characterize these examples as anecdotal or pointillistic, this Article explores a phenomenon deeper and more complex than particular cases: the way in which copyright law, as currently constructed and construed, defines a discourse that privileges the creative works and practices of incumbents and dominant cultures, while devaluing the works and practices of newcomers and disadvantaged cultures. Copyright systemically assigns value to some expressions and creators over others, and that value disparity works particular harm on underrepresented creators and their ability to use the expressive tools of dominant culture to "talk back" to inequality.

To date, many scholars who have approached the relationship between race and copyright have done so with a particular eye to remedying past exploitation of racialized innovation, or to optimizing wealth distribution. Although each of these is important, they are not the central concerns of this Article. I am chiefly concerned with the messages that copyright law sends about the creative process and the expressive value of particular works and creators. As far as those messages are concerned, copyright law's narrative of value discourages cumulative creativity in ways that exacerbate racial inequalities and silence diverse voices. These messages are deeply ingrained in copyright's structure, particularly its lionization of perceived originators and its deep suspicion of derivation and derivers.

Copyright law, like all law, forms part of a discourse about value and the relationships between people. In copyright's case, that discourse assigns particular value to expressions it deems "original," and to those it identifies as having "authored" those expressions. That value rests on a fiction--that there is any such thing as a truly "original" expression. Of course, there is such a thing as a new expression. But inevitably, even the newest expression is part of a chain of communication: the expresser draws on creative resources with shared meanings, and the receiver combines what they hear with their own context and experience to give it meaning. The expression then becomes part of the creative resources on which receivers may draw as they engage in further expressive communication. In fact, as literary theorists have long explained, expression has meaning only because it draws on a framework of shared meaning--the systems, signs, works, and "speech genres" (stylistic conventions) with which listeners become familiar. For this reason, all expressive creation is inherently "dialogic," i.e, part of an eternal dialogue in which creators of new expressions form meaning by likening those expressions to (and distinguishing them from) what came before. Appropriation, i.e., using something preexisting, and making it (metaphorically) one's own, is therefore a crucial and inevitable element all expressive creation.

In that sense, there is nothing inherently "bad" about appropriation. But the term "appropriation" often carries a connotation of wrongness--the implication that an appropriator possesses something not their own, unfairly or without authority or right. Etymologically, this connotation makes little sense; after all, "appropriation" shares its roots (Latin: "ad"-to; "propriare"-own) with "appropriate," i.e., proper. An improper taking would be a misappropriation. But as a practical matter, the term "appropriation" is at best a controversial one in the context of expressive works, associated with the critically polarizing genre of "appropriation art," and the accusatory epithet "cultural appropriation."

If appropriation is necessary for communication and expression, why cast it as negative? First, I suggest that we are wrong to do so. And second, I associate this linguistic mistake with copyright law: the legal system that connects making a communication "one's own" in the metaphorical sense and "owning" it in the proprietary sense. The core mechanism of copyright law-- granting authors exclusive market power over their original works--stands at odds with the fundamental principle that all communication is dialogic. By its nature, copyright law rewards what it identifies as originality and condemns what it identifies as appropriation. In so doing, the law picks winners and losers, ignoring their place in the middle of a communicative structure. Once an expression is deemed "original," its antecedents, whose context and building blocks create the foundation of expression's meaning, are not its "authors." The recipients of expression, whose thoughts and recreations build upon that expression to create richness and complexity of meaning are, somehow, not "original."

There is nothing inherently racial about copyright's line-drawing exercises. But like many systems that manipulate value and power, copyright law contains structural elements that disproportionately reward the already-privileged and disproportionately burden the already-oppressed. Post-colonial literary theory provides some useful insights into the process by which copyright law reinforces racial hierarchies. Because their rules are written by the powerful, systems of property ownership have always worked in favor of colonizers over the colonized, and intellectual property law systems are no different. One might describe geopolitical colonialisms as involving a double domination: (1) gaining control over a colonized people's culture; and (2) elevating the colonizer's own language above that of the colonized. Although it is more conceptual than territorial, copyright law incorporates both aspects of this domination. First, it provides mechanisms for dominant-culture creators to gain ownership over the expressive creations of speakers of color; and second, it promotes a discourse that advances the values and contributions of those dominant-culture creators, while devaluing the creative practices and priorities of subaltern communities. And, like many colonial laws, copyright goes a step farther to entrench its discourse: because copyright inherently gives owners some control over the means of expression, it allows them to silence challenges to copyright's value hierarchy. In post-colonial theory terms, "to control a people's culture is to control their tools of self-definition in relationship to others." Thus, perhaps inadvertently, copyright law elevates the creations and creative practices of dominant cultures over those they dominate, and the rhetoric of copyright law-- framed in terms of economic benefit and "deserving" authors--teaches that this hierarchy is somehow necessary or correct. In a Bordieuian sense, copyright law is thus a pedagogical action that "reproduce[s] the structure of the distribution of cultural capital" (where the cultural capital is copyright exclusivity and its message of value) and therefore reinforces racial inequalities.

Specifically, this Article argues that the copyright system favors a historically Eurocentric, male conception of authorship over more collective, cumulative, or improvisatory creative processes, and assigns ownership accordingly. It rewards appropriation of materials perceived as primitive, raw, or "folk" by purveyors of dominant culture, while punishing appropriation of materials that it associates with higher culture or views as already completed. By granting ownership to majority appropriators, copyright law not only grants them superior status, but also gives them exclusive rights to control the tools of discourse. As a result, the law permits majority appropriators to colonize the art forms of disadvantaged creators, but denies those disadvantaged creators the tools to talk back. The mechanisms of assigning ownership reinforce and feed on biases of lawmakers, judges, and juries about the cultural value of certain kinds of expression and creative practices. At the same time, copyright's focus on exclusive ownership as the sole lever for promoting "progress" denigrates the norms and expectations of creators with collective, cumulative, improvisatory, or other non-exclusivity-based cultural foundations. Copyright law is, in that sense, the language of the colonizer, and its operation as law compels creators to make a choice: either "buy in" to its conceptions of creative incentives and processes, or step out of the power structure and economic opportunity it creates.

For some, social justice may seem far from copyright's constitutionally stated goal. But there are many definitions of "progress of science and the useful arts," and no reason why we could not embrace a definition that incorporates human flourishing and the promotion of social justice. By identifying copyright's one-way racial appropriation ratchet, the doctrinal principles that drive it, and its impacts on discourses of value, this Article adopts such a definition, and urges others to consider copyright's impacts on social justice as a crucial aspect of when and whether copyright promotes "progress."

Despite the critique of copyright structures that runs throughout the Article, its analysis and conclusions are not anti-copyright. Copyright serves many important and socially beneficial purposes, including promoting the production of commercially valuable work. And copyright protection can, in a number of ways, promote social justice. Creators of color can use copyright to seek compensation when their creations are misappropriated by dominant copiers. More importantly, by providing a framework for publishers (etc.) to pay creators for their work in exchange for copyrights, copyright creates one framework for making creation professionalized, or at least directly remunerative. In this way, copyright is a mechanism for making creation available to people other than hobbyists or the independently wealthy.

But those benefits, while real, come with costs: to take advantage of copyright, one must be willing to engage in costly litigation or relinquish ownership (and often some degree of creative control) to others. And, to this Article's purposes, they also come with important costs to discourse about creativity. With that in mind, this Article identifies ways in which copyright law might inhibit "progress" in the social justice sense by articulating a narrative of value that devalues key techniques for "talking back" to inequality, and by consolidating semiotic power in the hands of dominant incumbents. Part I of the Article discusses how copyright law functions as a hierarchical discourse about the value of certain expressions, speakers, and hearers. Part II explores the roots of this hierarchical discourse in particular copyright doctrines and historical and informal forces. Part III describes how copyright's discourse of value can be particularly harmful to minorities' ability to resist hegemony. Finally, although this Article is designed to be more descriptive than prescriptive, Part IV touches briefly on some normative implications. With that in mind, it concludes that stronger copyright protections of the sort that currently exist are likely to exacerbate, rather than combat, racial inequalities. The Article calls on readers to examine copyright's (perhaps-unintended) narrative of value, its systemic biases, and the racially disparate consequences of its otherwise-reasonable doctrines.

[. . .]

It is tempting to look at the classic "nondiscrimination" principle of Bleistein v. Donaldson Lithographing Co. and presume that copyright law does not discriminate. But as the discussion above demonstrates, copyright law incorporates a combination of doctrinal, judicial, and informal biases to frame a discourse of value that reflects and reinforces racial hierarchies. Although copyright law can be a tool for social justice, its current configuration channels social understandings of "originality" and "authorship" in ways that consolidate expressive power in the hands of the already-powerful. It allows dominant appropriators to claim copyright's market benefits and inhibit the progress of cumulative creativity, while discouraging minority attempts to resist hegemony by recoding popular speech.

Much of this discrimination, I contend, is born of the law's implicit disrespect for cumulative and dialogic expression. For that reason, although there is an intuitive appeal to fairness in the idea that copyright might be used as a reparative/restorative measure to fill in for the disadvantages of racial oppression, I suggest that attempts to remedy social injustice through expanding copyright ownership are not only unlikely to succeed, but also likely to harm discourse and progress. Rather, I suggest we would do better to acknowledge that the nature of expressive creation is complicated and interdependent, and that meaning cannot be made by any one creator. Consider, for example, the story of Kayla Newman, who originated the term "on fleek" to describe well-styled eyebrows. After she used the word in a Vine, a short-form video shared through the phone application of the same name, it spread virally and its meaning morphed. In an interview, Newman expressed disappointment that she hadn't received compensation for her contribution to the global lexicon. Indeed, it may seem unfair that Ariana Grande, who rerecorded Newman's phrase, has surely profited more from it. But as a practical matter, Newman's broader story is one of how meaning works, and giving her ownership over her coinage would serve only to halt progress. After all, in the same Vine in which she originated "on fleek," Newman used the term "get crunk," a coinage first widely popularized in the 1990s that plays on the past-participle of "crank" and loosely means "full of energy." Who originated the term "crunk" before it became common parlance in the 1990s? Its origin is unclear. Some trace the term to a 1972 book by Dr. Seuss; others to Atlanta nightclubs, still others to Conan O'Brien. It would hardly benefit progress if Dr. Seuss or Conan O'Brien--or even a particular 1980s Atlanta clubgoer-- claimed ownership.

The lesson here is not that copyright is good or bad. It is that the current formulation of copyright law, like most systems developed by the powerful, was not designed to benefit racial minorities to the same extent as non-minorities. To the extent that our discourse adopts the values of copyright law, it incorporates the law's prejudices about what creative products and processes are most valuable. By being mindful of that, we may find a path to a version of copyright law that more accurately reflects creative realities while promoting a just vision of society.

Elizabeth L. Rosenblatt. Visiting Professor of Law, University of California, Davis.

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